Opinion
# 2014-044-008 Claim No. 118326
09-24-2014
IDEAL SNACKS CORPORATION v. THE STATE OF NEW YORK
KOSS & SCHONFELD, LLP BY: Allen V. Koss, Esq., of counsel HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Joseph F. Romani, Assistant Attorney General
Synopsis
After trial, Court found that defendant was entitled to qualified immunity on cause of action for negligent design of drainage system. Further, claimant failed to establish a cause of action for negligent construction, and failed to meet its burden of proof of notice regarding negligent maintenance claim. No liability.
Case information
| UID: | 2014-044-008 |
| Claimant(s): | IDEAL SNACKS CORPORATION |
| Claimant short name: | IDEAL |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 118326 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | KOSS & SCHONFELD, LLP BY: Allen V. Koss, Esq., of counsel |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Joseph F. Romani, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 24, 2014 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, a manufacturing company, commenced this action to recover for property damage allegedly caused by flooding that took place on August 10, 2009. Claimant contends that defendant State of New York (defendant) negligently designed, constructed and/or maintained a traffic circle and drainage culvert in the immediate vicinity of claimant's property (the Property). Trial of the claim was held on December 17-19, 2013 in the Binghamton District of the Court of Claims. The parties thereafter submitted post-trial memoranda.
In 2007, as a small part of a highway construction project (the Project), the New York State Department of Transportation (DOT) completed construction of a traffic circle at the intersection of Neversink Road and Mill Street in the Village of Liberty, Sullivan County. This construction necessitated the expansion of a drainage culvert at the head of a stream channel that ran along what was at that time the south edge of claimant's property. In 2008, a major rain event caused some flooding in the vicinity, and heavy rains caused more flooding in 2009. This claim pertains solely to the 2009 flooding. The allegations set forth in the claim are that defendant did not place sufficient catch basins to contain the surface runoff from the traffic circle onto claimant's property, that 2 18-inch drainage pipes were improperly placed contrary to the project's design specifications, and that a 24-inch drainage pipe was improperly installed such that it separated underground causing erosion. Claimant further argues that defendant had notice of the flooding problems by 2009 due to the 2008 flooding.
Zeke Alenick, claimant's president, testified at trial. He stated that claimant had been operating at the Property for 16 years. A stream channel runs through the Property, which is located within a flood zone. Alenick stated that prior to the Project, which took place from 2004 to 2007, heavy rains had never caused any damage to the stream channel.
However, after heavy rainfall in July 2008, he observed erosion near the stream channel, and a portion of the north wall containing the channel collapsed. He called an engineer, Glenn Smith (who testified as claimant's expert at trial), to review the damage. He then had Jomar Concrete (Jomar), a contractor, construct a new wall on the north side of the stream bed to contain the channel. Alenick said that he did not complain to defendant about the flooding at that time, but was certain that defendant was aware of the problem because the "place was crawling with DOT personnel." He said that DOT cleaned out a catch basin on the "high side of the ramp" that day, but he was not aware of any other work being performed. He stated that after the 2008 flooding, claimant had continual problems with surface runoff from the traffic circle. Again, Alenick stated that he did not advise DOT regarding this situation.
Alenick explained that in 2008, claimant owned only the property on the north side of the channel, but purchased the adjacent property (on the south side of the channel) sometime in 2009.
All quotes herein are taken from the Court's recording of the proceeding, unless otherwise indicated.
Alenick said that in August 2009 while the facility was shut down for vacation, he received a call that the walls of the stream channel were collapsing. He again called Glenn Smith, who told him that immediate repairs were necessary, or the facility would not be able to reopen because the building foundation would be undermined. Alenick said that his understanding of the cause of the flooding was the underground separation of the 24-inch pipe installed by defendant, an insufficient number of catch basins, and the 2 18-inch pipes protruding too far into the stream channel. He said that "the fix" entailed building big enough walls on both sides to handle the stream. Alenick characterized the situation as an "emergency," and stated that claimant paid all the costs of constructing walls on both sides of the stream, as well as having other work done for which he was not seeking reimbursement from defendant.
Although no testimony was adduced at trial regarding the total amount of bills submitted to the Court (Claimant's Exhibit 14 containing the bills is approximately one inch thick), the claim states that the total amount for which claimant is seeking reimbursement is $927,618.35.
On cross-examination, Alenick reviewed photographs of the stream channel taken at various times. He stated that prior to the Project, there were always "things coming down the stream," such as rocks, and the ground behind the walls containing the stream was essentially level with the top of both the north and south walls in a picture taken in 2004. Pictures taken by Glenn Smith on July 24, 2008 (collectively, the 2008 Photos), the day after the 2008 flooding, showed the concrete wingwalls of the culvert constructed by DOT and the drainage pipes in question. The 24-inch pipe extends from the south side of the stream channel, and the 2 18-inch pipes extend from the north side of the channel at a 45-degree angle (with the openings facing each other).
See Claimant's Exhibit 15.
See Claimant's Exhibit 16, Defendant's Exhibit D.
The photographs also show severe cracking in the asphalt parking area on the north side of the stream bed, and some large pre-cast concrete blocks also on the north side of the stream bed, some of which appear to have been displaced by water flow. Alenick stated that claimant had contracted for the pre-cast concrete blocks to be placed on the north side of the stream between the time the Project was completed and the 2008 storm, because the walls were eroding. In reviewing pictures (also taken by Smith) after the 2009 storm (collectively, the 2009 Photos), Alenick agreed that the soil level on the south side of the stream bed appeared to be higher than the wall at that time. He stated that the previous owner of the property on the south side of the channel had done some work to "secure his property" prior to claimant's purchase of that property in 2009, and he speculated that was the source of the additional fill which raised the ground level. The 2009 Photos also show an excavator which was used in the construction of new walls on both sides of the channel for which claimant is seeking reimbursement. The 2009 Photos show braces between the walls on the north and south sides of the channel. Alenick stated that he had the braces installed between the 2008 and 2009 floods in an attempt to keep the walls from collapsing. Alenick was unclear regarding the location of defendant's right-of-way. He was also uncertain as to whether claimant had sought a permit from DOT in order to perform the work done in DOT's right-of-way.
See Claimant's Exhibit 16, Defendant's Exhibit D.
Defendant's Exhibit B1, B2 (in Exhibit B, the numbers refer to numbered photographs, rather than page numbers of the exhibit).
see Defendant's Exhibit B1.
Alenick also acknowledged that some of the 2009 Photos showed the large excavator positioned directly over the 24-inch pipe on the south side of the stream. Alenick asserted that these pictures were taken after Smith's "discovery" that the 24-inch pipe had separated underground. Alenick agreed that the 24-inch pipe and the 2 18-inch pipes did not appear to have been displaced by the flooding. Some of the 2009 Photos also show that a large concrete block, into which a flagpole was set, had settled substantially. Alenick acknowledged that claimant had set that particular concrete block into place after the 2008 flood event.
Defendant's Exhibits B15, B18.
Defendant's Exhibits B7, B12, B13, B14, B17, B21, B22.
Defendant's counsel asked Alenick about some of the dates on the bills from Jomar for the 2009 construction. The flooding occurred on August 10, 2009. Invoice # 214-B indicates that equipment was moved to the job site on August 7, 2009. That invoice further indicates that excavation began on August 8, 2009, and the description of that work is "Begin Excavation: Begin the tear down of the existing wall lining the river." Excavation is noted as continuing on August 10, 2009. Alenick stated that no equipment was on the property prior to the flood, and that the dates on Jomar's bills must have been a typographical error. Alenick was also questioned about the extent of the work that was done in 2009, and whether it was all necessary for stabilizing the stream channel. Alenick asserted that it was.
Claimant's Exhibit 14 at 29.
Edward Mall, DOT engineer-in-charge and the field engineer for the construction project, also testified. The design for the project was performed by Larson Design Group. Mall stated that he was not aware that claimant's property was in a flood zone prior to construction, but he would not have done anything differently in his supervision of the project if he had been aware of that status. He inspected the area prior to the commencement of construction, but did not venture beyond the bounds of defendant's easements.
Mall stated that the stream channel was "functional" at the time construction began. He said that construction on the project sometimes took place in the rain, but he did not notice surface runoff flowing from the traffic circle onto claimant's property, nor did he observe any surface erosion. Mall said that the construction of the traffic circle involved adding approximately 50 feet to the existing culvert, as well as widening it. DOT placed boulders in the bottom of the stream channel to dissipate energy from water flow, and then tied the culvert in to the existing channel with "laid up dry stone." He said that the dry stone had already been there, and DOT simply restacked it.
Mall said that the 2 18-inch drainage pipes had to be relocated from the place they were originally designed to be installed, which was further downstream. He stated that the relocation occurred both because the end of the pipes would have been off the State's right-of-way, which would prohibit maintenance, and also because a high-voltage underground power line was in the way. Mall also said that placing the pipes further downstream might have destabilized the existing concrete wall, which was not in good condition. Mall testified that he was not aware that the design called for the pipes to be flush with the wall. He said that the pipes protruded into the stream channel only a couple of inches, and that the rocks into which the pipes were set also protruded.
Mall reviewed the 2009 Photos. He testified that DOT had not placed the concrete block with the flagpole on the north side of the stream, which a photo showed to have settled and fallen backward. That block is immediately downstream of the 2 18-inch pipes. When asked whether the turbulence created by the pipes protruding into the stream channel was responsible for the displacement of the block, Mall stated that he did not know how the block was set or what was underneath it. He further said that the soil collapse on the north side behind that block, the laid-up stones, and the stacked concrete blocks was due to erosion, but did not know whether that erosion was above ground. He said he did not believe that surface water would have caused that damage, due to the grade. He noted that the area was substantially different than when DOT finished construction, and noted the presence of a "concrete return wall" on the north side of the stream channel. He said that he installed catch basins according to the design plans, but could have placed more catch basins if there had been an indication that they were needed. He said that the only deviation from the design plans in that area was the placement of the 2 18-inch pipes.
Claimant's Exhibit 20.
see Claimant's Exhibit 16, lower photograph; Claimant's Exhibit 19, upper photograph; Claimant's Exhibit 25, lower photograph; and Claimant's Exhibit 28, lower photograph.
With regard to the south side of the stream channel, Mall described the scene in the 2009 Photos as showing "some stones lying in the brook . . . and some dilapidated concrete retaining walls." Mall reviewed the photo of the interior of the 24-inch pipe and stated that the pipe's separation could cause some erosion problems, but that it was not likely that such erosion would lead to the walls collapsing. Mall noted that the pipe was not under pressure, but was a gravity flow drainage pipe. He said that if the pipe had separated, the water would have dissipated down through the ground. Because the pipe was not under pressure, water flowing from the separation would not have displaced the stones comprising the wall.
Claimant's Exhibit 32.
On cross-examination, Mall stated that the Project completely rebuilt the water, drainage and sewer systems, as well as the highway, for approximately three miles. The area which is the subject of this action was only a very small portion of the Project, which he supervised. He explained that the 2 18-inch pipes on the north side of the stream channel drained Neversink Road and the catch basin installed on claimant's property, and are maintained by the Village of Liberty (the Village). The 24-inch pipe on the south side of the channel drains the roadside ditch adjacent to Mill Street, and is maintained by DOT. He said that numerous catch basins had been placed around the traffic circle and multiple other locations. No one representing claimant had ever indicated that there were problems with surface water runoff.
Mall said that the high-voltage power line had been installed between the design of the Project and construction, which was why it was not on the design plans. There was a fatality during construction due to contact with the line. Once the line was located, it was apparent that 1 of the 18-inch drainage pipes needed to be relocated. Mall said he talked to his supervisor about where the pipe should be placed, and they used their best engineering judgment in the situation. He said that it did not occur to him that the protrusion of the pipes would cause a problem, because the rocks into which they are set are also rough and protruding. He said that it did not appear to him that the pipes had moved in any way during either of the two flooding events.
Mall stated that 8-foot sections of the 24-inch pipe are connected together by rubber gaskets, and a machine is required to connect them. He said unequivocally that the pipe would not have been installed in the separated condition shown in the pictures. He said that he did not believe that erosion would have caused the pieces of pipe to separate, because the stones that hold the pipe in place are still intact. However, he noted that one of the 2009 Photos showed a large excavator sitting on top of the pipe, and he estimated that the distance between the treads of the excavator and the top of the pipe was six inches. He said that excavators should not be operated on top of pipes unless several feet of fill are on top of the pipe, and he thought that the excavator could "very likely be the cause" of the damage. He also noted that one of the 2009 Photos appeared to show the excavator lifting a large boulder up into the end of the pipe, which could have caused the damage to and separation of the pipe.
Defendant's Exhibit B at 7, lower photograph.
Claimant's Exhibit 20, lower photograph.
Mall testified that based on both the 2008 Photos and the 2009 Photos, it did not appear that anything constructed by the State had moved during the floods. He said that none of the work performed during the project impacted the existing concrete walls downstream of the culvert. He said that the concrete block holding the flagpole had been reset during construction, but that the block holding the flagpole which settled in the 2009 floods appeared totally different. He stated that the 2009 Photos showed that a substantial amount of work had been done on the stream channel, starting at the concrete flagpole block and extending downstream. He also noted that the fill level on the south side of the stream channel appeared to be several feet higher than it had been immediately after completion of the State's construction.
Claimant's Exhibit 22.
Claimant's Exhibit 20.
Id.
Claimant's Exhibit 19, lower photograph.
Mall said that he had not been contacted, as the engineer-in-charge of the project, to review the flood damage in 2008. He did speak to the person at DOT in charge of the permitting process, and said that he was not aware of any application for a permit to do the work performed by claimant on the stream channel after the State's construction was completed. He said claimant would have been required to obtain a permit from DOT in order to do the work claimant had done.
Mall reviewed aerial photographs of claimant's property taken May 3, 2009 and September 12, 2012. Mall stated that these photographs show that a substantial amount of work took place at the site between those dates. The parking lots were "totally improved and paved" as well as being expanded, the culvert was "totally re-built," an addition was constructed between two buildings, and extra drainage was installed in the parking lot. Mall testified that some of the construction abutted the right-of-way and some was "quite removed" from the right-of-way. He asserted that none of the areas where claimant's construction work was performed had been affected by the State's construction of the drainage system and culvert.
Defendant's Exhibit Y.
Defendant's Exhibit Z.
On redirect, Mall stated that the decision of whether to cut the 18-inch pipes flush with the wall, versus having them protrude, really depended on the individual circumstances. He stated that having the pipes protrude prevents erosion when the water level is low. He also said that it was "not really possible" that the sections of 24-inch pipe had been improperly connected during construction, allowing them to separate. He said that if the gasket had failed, the sections would not have separated in the manner shown in the picture. He again stated that he believed that the excavator resting on top of the pipe was responsible for the pipe's separation and cracking. He also stated that in cases of necessary emergency repairs, DOT was capable of issuing permits within a few hours.
Claimant's Exhibit 32.
Duane Mayo, DOT's regional construction supervisor at the time of defendant's construction work, also testified. He was supervising a number of projects at the time, and said that Mall was the immediate day-to-day supervisor of this project. He was Mall's superior. He stated that he was not involved in the design in any way, but would not have done anything different during construction.
He estimated that 1 of the 18-inch pipes protruded into the stream approximately 1 foot, and the other protruded about 1½ feet. He said that the upstream 18-inch pipe had been designed to be placed in that location, but that the downstream pipe had to be moved due to the high-voltage power line. He was not aware of any requirements in the design with regard to whether the pipes should protrude, versus being cut flush with the wall. When asked whether it was good practice to cut pipes close to a wall when they emerge into a stream channel, he stated that pipes are frequently projected out beyond the wall of a stream. He acknowledged that there would be more turbulence in pipes that project from a wall when the water is high, but also said that where pipes are flush with the wall they tend to cause erosion in the wall when the water is low. He further agreed that this stream channel could rise very quickly, with a strong rate of flow.
Mayo said he never came back to inspect the site after the construction was completed in 2007. He said that if DOT had been aware of property damage after the 2008 flooding, he would have been notified. He stated that DOT would only be responsible for remediation of a problem if it had maintenance responsibility. He was not certain how often DOT would inspect drainpipes.
Mayo agreed with Mall that the photographs showing soil collapse behind the stones and wall on the north side of the stream channel was not necessarily above-ground erosion, but that it also could have been caused by below-ground erosion.
see n 13, supra.
On cross-examination, Mayo acknowledged that at one point he had been the regional hydraulics engineer for DOT's Region 9. He said that it is not unusual to have to make field changes after finding unidentified underground utilities. He said that there is nothing unusual or of concern with regard to the protrusion of the 18-inch pipes. He stated that, given their elevation, any turbulence would be minimal. He noted that one of the 2009 Photos shows a new drainage pipe protruding from the wall constructed by claimant in 2008, and observed that this pipe also appeared to protrude approximately a foot from the wall.
Claimant's Exhibit 28, upper photograph.
Mayo also noted that the elevation of the soil appeared to have changed on the south side of the stream channel since DOT's construction was completed. In reviewing a photograph taken on August 12, 2009, he said that the elevation was higher than it had been, and further commented on "some excavation disturbance of the soil above the stone and the old concrete wall . . . that appears to have been done by an excavator." He stated unequivocally that the soil disturbance could not have been due to surface water "sheet runoff." He observed that the excavation was uniform, and that there was no rutting through the grass area, such as would have been caused by surface water erosion. He stated that the small amounts of gravel in the stream bed below the rock joints on the south side would have been washed away if significant water had been coming from behind the wall.
Defendant's Exhibit B, at 1.
Defendant's Exhibit B at 3.
Mayo also reviewed a picture of the 24-inch pipe after it had been removed from the ground. He stated that the damage to the ends of the pipe depicted in the picture was of the type normally incurred when pipes are removed. He was certain that the pipe would not and could not have been installed in that condition.
Defendant's Exhibit J.
Finally, Mayo stated that DOT's design standards require that the culvert be designed for a 50-year storm, and the drainage system for a 5-year storm.
Glenn Smith testified as claimant's expert. Smith does general civil engineering work such as land and housing developments, sewage treatment plants, drainage systems, highways and bridges. He also performs some engineering work for municipalities.
Smith stated that he received a call from a representative of claimant on the day of the 2008 flooding, and toured the site on that same day, July 27, 2008. Smith asserted that DOT personnel were present at and near the traffic circle that day, cleaning up debris from the flooding. He said that it was apparent that water had run down the entrance drive from the traffic circle, creating a large area of erosion, displacing a guide rail and causing settling of the ground. He stated that the need for necessary repairs was an emergency, and assisted claimant in applying to the Department of Environmental Conservation (DEC) for a permit, but had no involvement in requesting any permit from DOT. He said claimant did not wait for a permit to be approved before starting work.
Smith described the damage shown in the 2008 Photos, which he had taken. He said there was significant settlement and erosion of the bank on the north side of the stream bed in claimant's parking lot, which forced several of the pre-cast concrete blocks into the stream channel. The guide rail had been undermined and dropped down into an eroded hole. Smith specifically noted that debris appeared to indicate that surface water had flowed down from the traffic circle behind the stacked concrete blocks. Smith said that claimant had the hole filled with gravel, and called a contractor to build a concrete wall in place of the pre-cast concrete blocks on the north side of the channel. Claimant also had the contractor place a new concrete block with a flagpole in place of the old one.
Claimant's Exhibits 16, 22, 33 and 34.
See claimant's Exhibit 34.
Smith testified that he next received a call from a representative of claimant on August 10, 2009. Smith again went to the site, and took the 2009 Photos. Smith opined that the protrusion from the wall of the 2 18-inch drainpipes, combined with surface water flowing down from the traffic circle, was the cause of erosion and settling on the north side of the channel. He noted that these pipes were not originally designed to come into the stream at that location, and that the design plans did not call for them to protrude from the wall, nor should they have protruded at an acute angle (a 45-degree angle from the wall, so that the openings of the pipes were at a 90-degree angle to each other). Smith opined that it would have been a better engineering practice to have cut the pipes flush with the wall. He did acknowledge that field changes to plans are common, and that the discovery of the high-voltage electric line in the way of one of the pipes was a valid reason for the field change. He said that it is not unusual for two drainpipes to be placed in close proximity, but that it is unusual to have the downstream pipe facing upstream at a 45-degree angle, because the opposing flows are "working against each other." He further described the effect of the protrusion of the pipes as being similar to "putting your finger in front of a hose." He said he believed that the protrusion of the pipes at that angle created turbulence under the boulders and caused erosion behind the wall on the north side of the channel. Smith also opined that it would have been better practice to install the pipes through a solid wall, rather than through laid up stones.
Smith stated that he was not aware of surface water flowing onto claimant's property prior to the construction of the traffic circle. He noted that the designers were aware that the grade toward claimant's property was an issue, as set forth in an e-mail between the designers in which the design group was asked to design the project to direct storm water away from the building. Smith said that because the grade in the area was pitched toward claimant's property, any water from the traffic circle that did not go into the single catch basin at the front of claimant's property would flow down claimant's driveway on the north side of the stream channel. He opined that additional catch basins or swales could have resolved the problem.
Claimant's Exhibit 27.
On cross-examination, Smith acknowledged that the e-mail was dated October 2003, which substantially preceded in time the final design date of December 2004.
He stated that there was also substantial erosion downstream of the 24-inch pipe on the south side of the channel. He inspected the interior of the pipe and observed that it appeared to have separated. Smith stated that he was not aware of any construction having been performed in the area of the 24-inch pipe in 2009 prior to him taking the picture in which the pipe was shown to be separated. He said that the picture which depicts the excavator sitting on top of the 24-inch pipe was taken at a later time.
Claimant's Exhibit 30.
Claimant's Exhibit 32.
Smith said he did not observe DOT workers near claimant's property when he was there in 2009. He did not design any of the work done by claimant on the stream channel.
On cross-examination, Smith agreed that the design standard for the culvert was for a 50-year storm. When asked whether he was aware that the 2009 flood event was approximately a 100-year flood, he stated that he was not sure what it was. He was also not aware that the Village was responsible for maintenance of some of the drainage pipes in the system, including one of the 18-inch pipes. He did agree that the 2008 storm event exceeded the five-year flood design standard for the catch basins in the drainage system.
Smith acknowledged that he was not aware of how the concrete block under the flagpole was placed by claimant with regard to compaction or backfill. He said that to his knowledge, the only construction in or near the stream channel performed by claimant between the 2008 and 2009 flooding events was the erection of the concrete wall on the north side of the channel and the construction of the new flagpole base. He was not aware of whether claimant obtained a DOT work permit for that construction, although he acknowledged that such a permit would have been required.
Smith stated that he was not aware of any construction or excavation work taking place directly over the 24-inch pipe at the time the picture showing its interior and the separation was taken. He did not take the picture himself, but said that the picture accurately depicted what he saw when he looked in the pipe. He did not know what caused the pipe sections to separate.
Claimant's Exhibit 32.
Smith said that although he did not prepare construction plans for the work claimant performed on the stream channel in 2009, he did prepare a set of "as-built" plans after the construction was completed in order to satisfy the Village's building inspector. The State's right-of-way was not shown on his plans, but he said there was certainly work done by claimant within the right-of-way. He did not perform a hydraulic analysis as part of his plan. He was not aware of any adverse damage to the stream channel as a result of claimant's construction and repairs in 2008 and 2009.
Smith clarified his opinion regarding the cause of the 2009 damage. He said that the settling of the concrete flagpole block on the north side of the stream and the ground that was washed out behind it was caused by surface water flowing down claimant's driveway from the traffic circle. He opined that the damage on the south side of the channel - where three or four boulders fell into the stream just below the 24-inch pipe - was caused by underground erosion as a result of the pipe separation. He said that the old walls on the south side of the channel (he stated that "the footing [of those walls] had been there for a hundred years, maybe") were in poor structural condition due to surface erosion on top and behind them, but that nothing had occurred that would have affected those walls except defendant's construction.
Claimant rested its case at the close of Smith's testimony. Defendant moved to dismiss the claim on the ground that claimant had failed to meet its burden of proof that any negligence in the design, construction or maintenance on the culvert or drainage system caused the damage to claimant's property. The Court reserved decision on the motion.
Brian Doak, a civil engineer and 25-year DOT employee, testified for defendant. He stated that he manages a highway design squad, and at one point was a field engineer. His responsibility with regard to this particular construction project was to ensure that the design contractor and other consultants complied with DOT's design standards and goals for the project.
Doak testified that the Village is responsible for maintenance of the upper 18-inch drainage pipe. He stated that maintenance of the lower 18-inch pipe is claimant's responsibility, because it drains water from claimant's property. Maintenance of the 24-inch pipe draining water from the roadside ditch is defendant's responsibility. He said the drainage system was designed for a five-year storm, in accordance with State standards. Prior to the Project, there were two catch basins in the vicinity of claimant's property; one in front of claimant's building and one at the intersection of Neversink Road and Mill Street. He said the one in front of claimant's building was a "private drainage structure." He stated that as part of the Project, the State installed approximately 16 drainage catch basins in the area. Claimant's "private" catch basin was replaced during the Project "out of good will."
Doak stated that a drainage report was prepared for this portion of the Project which showed that the hydraulic capacity of the redesigned culvert was adequate. He said that the increase of water flow through the culvert due to the Project was "inconsequential." He stated that his biggest concern with regard to drainage at the time of construction was the condition of the walls on both sides of the channel downstream of the culvert. He reviewed photographs showing the condition of the walls. He noted that photographs show that the walls were in very poor condition and "way beyond [their] functional ability to support loads." Doak stated that he personally inspected the walls, and that there was "undermining of the footer of the wall," many cracks, and evidence of efflorescence, indicating severe deterioration of the concrete. He said that if the State had been responsible for the walls, they would have been replaced long ago. Another photograph showed that there were cracks through one of the walls longitudinally, and yet another showed the footers beneath one of the walls. Doak said the footers should be below the floor of the stream. Despite his concerns about the condition of the walls, however, he emphasized that the walls were on private property outside the State's right-of-way, and not the responsibility of the State.
See Defendant's Exhibit M.
Defendant's Exhibit B.
Defendant's Exhibit L.
Defendant's Exhibit K.
Doak observed that various photographs showed that some of claimant's construction on the channel walls (for which claimant seeks reimbursement) took place in the State's right-of-way, and that State property was destroyed as a result. He said that a permit would have "absolutely" been required prior to any construction taking place within the right-of-way. He stated that the photograph showing the excavator on top of the 24-inch pipe showed work being done in the State's right-of-way. He said that the photographs clearly showed that work had been done prior to the 2009 flood, such as the ground level on the south side of the stream having been raised by as much as two feet, and was higher than the top of the wall.
Claimant objected to a substantial portion of Doak's testimony regarding Jomar's bills as being expert testimony, although Doak was only a fact witness. The Court sustained claimant's objection, and has not considered that portion of the testimony. Accordingly, the Court also has not considered that portion of Doak's cross-examination in which claimant's counsel asked questions for the purpose of eliciting an expert opinion regarding those bills.
Defendant's Exhibit B-15.
See Defendant's Exhibit B-1, Claimant's Exhibit 35.
On cross-examination, Doak acknowledged that prior to the Project, surface water ran down from the road onto claimant's driveway. He said he did not believe that the construction work performed by the State during the Project would affect the stream channel. He stated that DOT was required to ensure that the stream channel could handle the water load from a hydraulic perspective. He said this portion of the Project was designed so that surface water from the traffic circle would flow down claimant's driveway along the curb line and into the catch basin. He was confident that the catch basin was designed adequately for a five-year storm. He further stated that, despite the poor condition of the walls on claimant's property downstream of the culvert, they were adequate to handle the stream flow at the time the Project was finished.
On redirect, Doak confirmed that the Project did not change the amount of water flowing through the stream channel on claimant's property, either in terms of volume or of force. He said that it is impossible to design for all possible circumstances, as the cost would be prohibitive.
Peter Van Kampen, a licensed civil engineer and design squad leader for DOT, testified as one of defendant's experts. He stated that he has extensive experience with drainage systems and culverts, and is also a member of DOT's emergency response team.
Van Kampen reviewed the design plans for drainage in the area of the culvert. He confirmed that the catch basins and drainage system were designed for a 5-year storm, and the culvert for a 50-year storm, as required by the Highway Design Manual.
Van Kampen reviewed the photograph of the underground separation of the 24-inch pipe, and agreed that there seemed to be some separation. He stated that when a drainage pipe is cracked or broken, the water passing through the pipe will draw out the fine materials next to the pipe and deposit them downstream. This eventually creates a void next to the pipe, and ultimately a sinkhole above the pipe. He stated that there was no evidence of a sinkhole above the separation of the pipe. He said that the pipe would have continued to function despite the separation. It was gravity-fed, and not under pressure.
Claimant's Exhibit 32.
Van Kampen stated that the same principle applies where there is a joint in a wall. The water pulls material out as it flows by, and eventually creates a void behind the wall, into which the ground settles. He noted that this kind of damage could be seen in the 2008 Photos, which show a "failure" behind the pre-cast concrete blocks installed by claimant after construction was complete, but prior to the 2008 event. He stated that the sinkhole was due to openings in the joint of the wall, and not likely due to surface erosion or to turbulence generated by the 18-inch pipes. He said that pre-cast concrete blocks are not stable, and DOT does not use them anymore, except perhaps on an extremely short-term basis. He noted that they are not fastened together, and thus do not have much strength. He said "once one thing goes, they all go." He also stated that he could not determine from the photographs whether they had been placed on a footing. He said they were definitely not State construction.
Claimant's Exhibit 16.
With regard to the 2 18-inch pipes, Van Kampen opined that there was no evidence of scour or soil erosion associated with those pipes. He said that the settling of the concrete block with the flagpole, which was just downstream of those pipes, seemed to be due to poor compaction behind the block. He said the block was not tied into anything, and there was nothing to keep it in place, as there was no footer beneath it. He believed it was within the State's right-of-way, but was not constructed by the State.
Van Kampen summarized the work done on the stream channel after defendant's construction was complete. He noted replacement of the pre-cast concrete blocks on the north side of the stream, along with a catch basin with a plastic pipe "sticking out of the wall," and the installation of the concrete block with the flagpole, all of which appeared to have been done prior to the 2008 event.
see Defendant's Exhibit B-13.
After the 2009 event, claimant's photographs show claimant's contractor working in the stream bed, removing the State's 24-inch pipe, and replacing the retaining wall on both sides of the stream channel. Van Kampen noted that a work permit would have been required for claimant to do this construction. He said claimant also put another culvert in and installed numerous catch basins, as well as replacing all of the laid-up stone installed by the State with a retaining wall. Van Kampen opined that a hydraulic study should have been performed prior to performing all the construction. He also said that claimant would have been required to do "some mitigation" if it had applied for a work permit, because of the increase in runoff due to the installation of additional impermeable surfaces (the new paved parking lot).
Defendant's Exhibit E.
Van Kampen testified that the pre-cast concrete blocks installed by claimant prior to the 2008 event should have been only a temporary measure. Moreover, the concrete wall which replaced them (between the 2008 and 2009 events) was significantly higher than the previous wall, which he said could have adverse effects on the stream channel. He said this potentially redirects the force of the water to the other side of the stream.
Van Kampen opined that the State's design and construction did not cause the damage to claimant's property in 2009. The 2 18-inch pipes would have had only a minimal effect on water flow, and were well-anchored. There was no evidence that they were displaced in any way by either the 2008 or 2009 event. The catch basins were properly designed and constructed, he said, within the five year storm standard. He said that when a heavy rainfall overwhelmed the catch basins at the traffic circle (as it did in 2009), the design was such that water would normally flow along the driveway into the catch basin in front of claimant's building.
He said that the work done by claimant after DOT finished construction appeared to be the cause of the damage to claimant's property. He stated that the 2009 Photos taken by Glenn Smith immediately after the 2009 event, which purported to show damage inflicted by that storm, actually appeared to show that excavation work had been being performed on the south side of the stream channel prior to the time the photos were taken. He noted that there were very dissimilar materials aggregated together, and a ridge behind them where an excavator with a clamshell appeared to have "cleaned out" the area in preparation for construction. He said that the "damage" portrayed in those pictures would not have been caused by water runoff. There were no "flow lines" and it was "rounded out." Water "doesn't scoop out large swaths like that," and the damage was not oriented in a downstream direction. Further, the scooped out area stopped abruptly at the pedestrian bridge downstream. "Water is usually not that discerning." He also noted that the joints between the blocks of the wall on the south side were cleaned out. He stated that it looked like the site was being prepared for demolition of the wall.
See Defendant's Exhibit B-6, top photograph.
Van Kampen concluded that the design of the drainage structures and culvert was appropriate and that "due diligence" had been performed. He opined that the installation of the 18-inch pipes in a different location than indicated on the design had no impact on drainage. He stated that there was no evidence of system failure due to the installation of the drainage system by the State.
On cross-examination, Van Kampen was asked if he was aware that no construction had been performed by claimant at its property prior to the 2008 event. Van Kampen was adamant that the pre-cast concrete blocks had not been placed by DOT. He acknowledged that he had not been to the site prior to either the 2008 or 2009 events. He agreed that the walls on both sides of the stream channel had been deteriorating over time. He stated that the damage after the 2008 event on the north side of the stream channel appeared to have initially been caused by the "failure" (settling) of the concrete block containing the flagpole. Water would have flowed into the hole it shifted from and eventually caused sub-surface erosion. Van Kampen clearly indicated that he did not agree with Smith's opinion that the damage visible after the 2008 event on the north side of the stream channel was caused by surface runoff. He stated that placing the 2 18-inch pipes so that they protruded into the stream channel was "not bad practice," but "probably not the best practice." However, he said, any additional turbulence caused by this protrusion would be minimal. He also stated that it appeared in the 2009 Photos that soil had previously been excavated back from the south wall of the stream, which "most likely pushed" some of the rocks comprising the wall into the stream. When asked whether the "damage" to the surface above the south wall was caused by water, he said there were no flow lines that he would expect to see, and that materials appeared to be oriented perpendicular to the stream flow, which would not be the case if that had been water damage.
Notably, this questioning by claimant's counsel directly contradicts Alenick's testimony that claimant had the pre-cast concrete blocks installed after the Project was concluded, but prior to the 2008 event, as set forth supra.
see Defendant's Exhibit B1.
On redirect, Van Kampen stated that the drainage report and the hydraulics study performed by DOT showed that the velocity and force of the water downstream remained the same after construction as it had been prior to that time. He did not believe that the Project exacerbated the poor condition of the walls downstream of the culvert. He again asserted that the protrusion of the 18-inch pipes into the stream channel did not cause any damage. He noted that "a huge massive storm would overwhelm any system," and said that the State cannot design for such events because the cost would be "astronomical."
Defendant's Exhibit M.
On recross, Van Kampen stated that the State's construction did not affect the integrity of the walls downstream of the culvert, and that the separation of the 24-inch pipe would also not have had any such effect.
Thomas Rook, the regional hydraulics engineer for Region 9 of the DOT (in which claimant's property is located), also testified as a hydraulics expert for defendant. Rook has been employed by DOT for over 30 years. Prior to his position as regional hydraulics engineer, he was a bridge inspection team leader. Although he was familiar with the Project and its location, he was not involved with its design or construction. However, he had inspected the culvert in 2003 as part of a project to determine how best to repair it.
In preparation for his testimony, Rook reviewed the climatological data from the 2008 and 2009 events. He noted that the National Weather Service (NWS) had issued flood warnings on July 24, 2008 and on August 9, 2009, as well as a flash flood warning on August 9, 2009. He said that a flash flood is "very heavy rain that falls over . . . an isolated area . . . [with] the potential for streams to rise suddenly." Based on NWS data, it appeared that approximately 5½ inches of rain fell in a 24-hour period on July 24-25, 2008, and within a 12-day period the area received approximately 7 inches. Based on a flood insurance study for the Village, he said it appeared that the water flow in the stream would have exceeded the height of the walls. He indicated that based upon other witnesses testimony regarding the height of the water, he would characterize the flood level of the 2008 event as "perhaps a 50 to a 100 year flood." He stated that this amount of water would create a great deal of pressure on the walls lining the stream, as well as potentially scouring the base of the walls and causing erosion behind them. He said the damage shown on claimant's property in the 2008 Photos appeared to be the result of the height and speed of the water flowing through the culvert, rather than due to turbulence from the protrusion of the 18-inch pipes into the stream channel. He noted that the pre-cast concrete blocks on the north side of the channel, as well as the soil behind them, had been disturbed. He said that the disturbance appeared to be due to movement of one of the lower pre-cast blocks. He said he believed that a block or blocks could have been undermined by the water flow in the 2008 event. He noted that the State does not use that type of block because when they fail, the result is "catastrophic."
Defendant's Exhibit R.
Defendant's Exhibit O.
Claimant's Exhibit 34.
Rook said that NWS data indicated that approximately 5½ inches of rain fell in the 5-day period commencing July 30, 2009, and 9½ inches in the 12-day period starting that same date. He believed that the 2009 event was comparable to the 2008 event, and would have exceeded the design standard for the catch basins. He stated that the 2009 event exceeded 100-year flood levels, and accordingly exceeded the design standard for the culvert. He said that raising the soil level on the south side of the stream and raising the wall level on the north side of the stream would have prevented the stream from spreading out and dissipating energy, resulting in either higher flow or faster velocity within the stream bed. He also stated that the new concrete wall on the north side could have redirected the force of the water toward the deteriorated wall on the south side of the stream. He said that it did not appear that the 24-inch pipe was displaced in any way during either the 2008 event or the 2009 event. He asserted that the impact of any water escaping through the separation in the 24-inch pipe would have been minimal compared to the amount of damage caused by the velocity of the water in the stream. He did not believe that any water coming out of the separation would affect embankments downstream. He stated that the damage shown in the 2009 Photos "seemed like a classic example of high water damage from the stream." Rook opined that the property damage shown in the 2009 Photos was due to the height and velocity of water coming through the culvert, rather than the water coming through the 24- and 18-inch drainage pipes.
Defendant's Exhibits S and T.
See Defendant's Exhibit Q.
Rook said that based on the flood insurance study and the past history of flooding (in the 2008 event), he would have recommended that claimant obtain a hydraulic study prior to commencing construction in 2009.
On cross-examination, Rook acknowledged that the walls on either side of the stream channel had appeared to hold up well, up to the time of the 2008 event. However, he said, it only takes one event to cause damage, regardless of how many precede it. He noted that a footing under the north wall appeared to have been exposed prior to the 2008 event. He stated that scouring is a continuing process, and would have eventually undermined the walls.
Rook agreed with Van Kampen that it would have been better engineering practice to cut the 18-inch pipes closer to the wall. However, he attributed the damage in 2008 (the displaced pre-cast concrete blocks and erosion behind the wall) to the water level and velocity in the stream channel. He attributed the partial collapse of the wall on the south side of the stream during the 2009 event to claimant's construction of the concrete wall on the north side in 2008. He did not believe that it was possible that water flowing out of the separation in the 24-inch pipe could have caused the damage.
On redirect, Rook emphasized that repeated flood events will eventually cause a stream wall to fail. He noted that the stream walls that had deteriorated were on private property, and that the State cannot enter onto private property and make repairs.
Defendant rested at the close of Rook's testimony. The Court reserved decision.
The State is not an insurer of its drainage systems and the mere occurrence of a flood, without more, is an insufficient predicate for a finding of liability (De Witt Props. v City of New York, 44 NY2d 417 [1978]; Biernacki v Village of Ravena, 245 AD2d 656 [3d Dept 1997]). "A municipality is [generally] immune from liability arising out of claims that it negligently designed [a] sewerage system or storm drainage system" (Carbonaro v Town of N. Hempstead, 97 AD3d 624, 624-625 [2d Dept 2012] [internal quotation marks and citations omitted]) under the doctrine of qualified immunity. In other words, the State may not be held liable unless claimant establishes that the roadway and/or drainage structures were designed without adequate study or based upon an unreasonable design decision (Friedman v State of New York, 67 NY2d 271, 284 [1986]; Weiss v Fote, 7 NY2d 579 [1960]).
In the claim, claimant alleges that an insufficient number of catch basins were installed, which appears to state a cause of action for negligent design. However, in its post-trial memorandum, claimant argues that it did not allege negligent design, but instead is contending that negligent construction and maintenance were the causes of the property damage. Claimant states that the negligence lies in the failure to add additional catch basins after the defects were "discovered in 2008," to correct the location and direction of the 18-inch pipes, and the failure to monitor, discover and repair the separation of the 24-inch pipe.
Claimant's claim certainly appears to set forth a cause of action for negligent design, and to the extent that it does so, the Court makes the following analysis. Claimant made no showing that the drainage structure was designed without adequate study or based upon an unreasonable design decision. A hydraulic and drainage study was performed. The drainage system was designed for a five-year flood, in accordance with DOT's design manual. The issue of surface water runoff onto claimant's property was considered during the course of the Project's design. Moreover, Alenick acknowledged that claimant never advised defendant that any surface drainage problems existed. Finally, it was not disputed that the 2009 event constituted at least a 50-year flood, if not a 100-year flood.
As claimant has failed to make a showing of inadequate study or unreasonable design decisions, defendant is entitled to the defense of qualified immunity with regard to any claim for negligent design. Further, it is well-settled that a governmental unit is not required to provide a drainage system sufficient to dispose of all surface waters flowing as a result of the natural drainage, grading and paving of streets (Fox v City of New Rochelle, 240 NY 109 [1925]; Friedland v State of New York, 35 AD2d 755 [3d Dept 1970]). Certainly defendant was not required to install additional drainage catch basins on claimant's private property. Consequently, to the extent that claimant has asserted a cause of action for negligent design, that cause of action is dismissed.
Claimant next alleges that the system was negligently constructed. The alleged negligent acts include both the relocation of either 1 or both of the 18-inch pipes to their present location while leaving them protruding from the wall and installing them at a 45-degree angle facing each other over the stream bed, as well as the deficient installation of the 24-inch pipe so that it separated at some point. Claimant contends that defendant should have "corrected" the location, direction and protrusion of the 18-inch pipes once the "defect" was "discovered" in 2008. This ignores the uncontroverted fact that defendant did not retain maintenance responsibility for the 18-inch pipes. More importantly, while the engineers agreed (for the most part) that it would have been better practice to cut the pipes at the wall, the Court credits the opinions of defendant's engineers and experts who all stated that the turbulence created by this placement would have been minimal. Further, claimant submitted no evidence that the 24-inch pipe was negligently installed, other than speculation. Accordingly, the Court finds that claimant has failed to establish that defendant's construction was negligent in any way.
While qualified immunity may shield the State from liability for an allegedly negligent design of a sewage or drainage system, it will not shield the State from liability for the negligent maintenance of the system (Azizi v Village of Croton-on-Hudson, 79 AD3d 953 [2d Dept 2010]). In order to establish a prima facie case based on the failure to properly maintain a public drainage system it was necessary for claimant to present evidence that defendant "either affirmatively breached a duty owed, or that it was actively negligent and the negligence caused the flooding" (Biernacki, 245 AD2d at 657; see Holy Temple First Church of God in Christ v City of Hudson, 17 AD3d 947, 947 [3d Dept 2005]). Negligent maintenance can be established through the submission of evidence that the State has received " 'notice of a dangerous condition or has reason to believe that the pipes have shifted or deteriorated and are likely to cause injury,' . . . it has neglected to 'make reasonable efforts to inspect and repair the defect,' and, . . . such neglect has caused an injury to [the claimant]" (Holy Temple First Church of God in Christ, 17 AD3d at 947-948, quoting De Witt Props., 44 NY2d at 423-424; see also Holscher v State of New York, 59 AD2d 224 [3d Dept 1977], affd for reasons stated below 46 NY2d 792 [1978] [where the State was not obligated to reconstruct drainage culvert to conform to current standards and there was insufficient notice of any inadequacy or obstruction]).
Claimant argues that defendant was on notice regarding the "defects" in the drainage system due to the presence of DOT workers at the traffic circle after the 2008 event. Claimant asserts that the testimony of both Smith and Alenick that these workers were present, when combined with defendant's failure to produce any witnesses to testify regarding the activities of those workers, is sufficient to establish prima facie entitlement to judgment that defendant had notice of the "defective condition." Claimant overlooks the fact that it has the burden of proof of affirmatively establishing notice of a dangerous condition. Claimant has submitted evidence that defendant's employees were in the general vicinity immediately after the 2008 event. However, claimant has introduced absolutely no evidence which shows that defendant ever became aware - or even that it should have become aware - of the so-called defective conditions (surface water runoff, the placement of the 18-inch pipes and/or the separation of the 24-inch pipe). The property damage alleged by claimant after the 2008 event was on private property. Claimant admittedly did not advise DOT or anyone else affiliated with defendant of the property damage. Claimant argues that Mayo testified that the drainage pipes for which the State has maintenance responsibility should be inspected twice per year. This mischaracterizes Mayo's testimony. When asked how often DOT would inspect drainage pipes, he stated he did not know. This testimony does not support an argument that defendant should have conducted an inspection and thus should have been aware of a separation in the 24-inch pipe. Moreover, as previously set forth, claimant did not retain the responsibility for maintenance of the 18-inch pipes. Claimant has not met its burden of establishing notice - either actual or constructive - of the allegedly dangerous conditions, and has therefore failed to set forth a prima facie case of negligent maintenance of the system.
The cases cited by claimant - Murphy v Carnesi (30 AD3d 570 [2d Dept 2006]), Aguilar v Henry Mar. Serv., Inc. (12 AD3d 542 [2d Dept 2004]) and Downey v Beatrice Epstein Family Partnership, L.P. (12 Misc 3d 1193 [A]; 2006 NY Slip Op 51560 [U] [Sup Ct Kings County 2006], affd 48 AD3d 616 [2d Dept 2008], lv denied 11 NY3d 702 [2008]) - are not even remotely relevant to the present situation.
Claimant cites Preston v State of New York (6 AD3d 835 [3d Dept 2004], lv denied 3 NY3d 601 [2004]) in support of the proposition that defendant somehow had constructive notice of the defective condition. Preston involved the existence of a tree located on private property near a State highway. The Court acknowledged that the State's duty to maintain its highway may extend to conditions beyond the travel lanes and shoulders such as the private property. However, the absence of an "event that would have given [the State] notice of a specific dangerous condition" was fatal to the negligence claim. Similarly in this case, the unreported damage which occurred on claimant's private property in 2008 cannot possibly have given defendant notice of a specific dangerous condition.
Claimant also proffers the argument of res ipsa loquitur, contending that the damage would not have occurred in the absence of negligence. Claimant further contends that the instrumentality causing the damage - the construction project - was in defendant's exclusive control, and that claimant did not contribute to the damage. Claimant has not proved any of the requisite elements for this theory. First, claimant does not dispute that the 2009 event was at least a 50-year flood, if not a 100-year flood. It was further uncontroverted that the design standard for the culvert was a 50-year flood, and the standard for the drainage system was for a 5-year flood. There was no contention by claimant that the culvert itself (as opposed to the drainage system) was a contributing factor to the damage. The proof was convincing that the amount of rain substantially exceeded the designed capacity of the drainage system, which could not reasonably accommodate that amount of water. This clearly does not constitute negligence (see Ball v State of New York, 134 AD2d 827 [4th Dept 1987]).
The issues of whether the instrumentality causing the damage was in defendant's exclusive control, and whether claimant contributed to the damage, are also key factors in the analysis of this claim, regardless of the theory espoused by claimant. In other words, the question is whether claimant has met its burden of showing that defendant's alleged negligence was the proximate cause of the damages sustained by claimant (see Bernstein v City of New York, 69 NY2d 1020, 1021-1022 [1987]; Marchetto v State of New York, 179 AD2d 947 [3d Dept 1992], lv denied 80 NY2d 751 [1992]; Demesmin v Town of Islip, 147 AD2d 519 [2d Dept 1989]). A claimant must "prove 'that it was more likely or more reasonable that the alleged injury was caused by . . . defendant's negligence than by some other agency' " (Pipp v Guthrie Clinic, Ltd., 80 AD3d 1014, 1015 [3d Dept 2011], quoting Gayle v City of New York, 92 NY2d 936, 937 [1998]). In Palumbo v State of New York (UID No. 2001-010-016 [Ct Cl, Ruderman, J., Feb. 28, 2001]), the Court stated: " '[w]here the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury' " (quoting Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7 [1938]). "A prima facie case of negligence must be based on something more than conjecture; 'mere speculation regarding causation is inadequate to sustain the cause of action' " (Mandel v 370 Lexington Ave., LLC, 32 AD3d 302 [1st Dept 2006], quoting Segretti v Shorenstein Co., E., 256 AD2d 234, 235 [1st Dept 1998]).
Claimant asserts that because the 24-inch pipe was improperly installed, it separated and caused erosion which ultimately led to the collapse of the south wall. In contrast to this allegation, however, defendant's engineers and experts all testified that the walls on claimant's private property were in extremely poor condition at the time of the Project. Doak testified that he personally inspected the walls and found that the footer on the north side was undermined and the concrete was severely deteriorated. Alenick testified that shortly after the Project was concluded, claimant installed the pre-cast concrete blocks on the north side of the stream channel. These pre-cast concrete blocks were replaced by a high concrete wall after the 2008 event. Van Kampen testified that the height of this wall would redirect the force of the water to the other (south) side of the channel. On that side, it is apparent that the soil level had been raised since the Project was finished. Rook testified that the increased height of both walls would have resulted in higher flow or faster velocity, either of which could have caused the erosion and subsequent collapse. If indeed the 24-inch pipe was the cause of erosion on the south side of the stream channel, that erosion would have been adjacent to the pipe, not many feet downstream. Notably, nothing constructed by defendant - the culvert, its wingwalls, the 2 18-inch pipes, or the 24-inch pipe - moved or was damaged in either the 2008 or 2009 event. The Court finds that neither the placement nor the separation of the 24-inch pipe contributed to the erosion which undermined the wall, causing it to collapse.
Defendant's experts both opined that the pre-cast blocks should be used only as a temporary measure because they are not stable and not fastened together. Van Kampen stated that the erosion behind the wall after the 2008 event was due to the openings in the joints of these blocks as well as the settling of the concrete flagpole block. While this is not relevant to the issue of the 2009 flood damage, it is indicative of the pattern demonstrated by claimant of inadequate and poorly designed repair work.
In any event, the Court finds it equally likely (if not more so) that the separation of the 24-inch pipe was caused by claimant's contractor's excavator, rather than by flood damage. The Court finds, after observing Alenick's demeanor and considering all the evidence, that Alenick was not a credible witness on this matter. The soil on top of the south side of the channel clearly appears in the 2009 Photos to have been excavated with some sort of scoop. As both Van Kampen and Mayo noted, this configuration would not have been caused by water runoff. The records submitted by claimant show that equipment was moved onsite several days prior to the 2009 event, supporting the proposition that excavation had commenced prior to the August 10, 2009 event. In addition to the Jomar bills showing that equipment was moved to the site on August 7, 2009 (characterized by Alenick as a typographical error), the quote prepared by Jomar and executed by Alenick is dated August 8, 2009. Items appear to have been purchased for the construction as early as August 4, 2009, again prior to the August 10, 2009 event. It is highly unlikely that all of these documents contained typographical date errors, particularly when combined with photographic evidence that excavation had started prior to the flooding.
Claimant's Exhibit 14 at 13.
Claimant's Exhibit 14 at 45.
It should also be noted that Smith did not state unequivocally that no construction took place prior to August 10, 2009. Instead, he carefully said that he was not aware of any such construction.
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In conclusion, defendant has provided uncontroverted proof that it is entitled to qualified immunity with regard to the issue of design. Claimant has failed to set forth a cause of action for negligent construction. Claimant has not met its burden of proof with regard to the claim of negligent maintenance that defendant ever had notice - whether actual or constructive - of any alleged defective condition. Moreover, the 2009 event during which the damage occurred for which claimant seeks reimbursement substantially exceeded the design capacity of the drainage system. Finally, it is as likely that the cause of the damage was due to the poor condition of the walls and the construction work done by claimant after the Project was completed (some of which probably commenced only a few days prior to the 2009 event), combined with the substantial amount of rainfall. Claimant clearly has not met its burden of proof with regard to causation.
Consequently, the claim is hereby dismissed. Any motions not previously determined are hereby denied.
Let judgment be entered accordingly.
September 24, 2014
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims