Opinion
XXXXX
02-17-2022
Richard W. TORTORICI, III, Plaintiff, v. Anthony MASSARONI, Defendant.
Richard W. Tortorici, III, plaintiff pro se. Anthony Massaroni, defendant pro se.
Richard W. Tortorici, III, plaintiff pro se.
Anthony Massaroni, defendant pro se.
Peter J. Scagnelli, J. Plaintiff has sued the Defendant in the Small Claims Part of this Court seeking damages in the amount of $1,142.44 for a claim against the Defendant for nuisance/negligence in constructing a storm water system and ignoring a Stop Work Order concerning the same on new construction located at a property adjacent to Plaintiff's residence on or about November 12, 2021.
In this matter, the Plaintiff testified on his own behalf and called no witnesses. Plaintiff was cross-examined by the Defendant and made a statement in rebuttal of the same. Plaintiff offered various documents in evidence with the consent of the Defendant as follows:
• Exhibit "1": A letter to the Defendant from Scott Reese Stormwater Management Technician of the Town of Clifton Park dated August 4, 2021. On the opposite side of that document was a "Stop Work" notice dated September 21, 2021 addressed to the Defendant;
• Exhibit "2A-E": Various photographs of the Plaintiff's property and automobile showing water flow across his property and onto the street on Easton Drive in Clifton Park, New York;
• Exhibit "3": An e-mail chain to Mr. Massaroni from Mr. Scott Reese dated November 12, 2021 concerning illicit discharge of sediment laden runoff;
• Exhibit "4" An e-mail dated November 12, 2021 from the Plaintiff to Mr. Scott Reese of the Town of Clifton Park;
• Exhibit "5" A letter dated November 18, 2021 to the Defendant concerning a Notice of Violation of the property of 132/134 Lapp Road, Town of Clifton Park, which includes eight photographs;
and
• Exhibit "6" A bill and estimate concerning damage to Plaintiff's car.
The Defendant testified on his own behalf and called no other witnesses. Defendant was cross-examined by the Plaintiff and made a statement in rebuttal to the same. Defendant offered various documents in evidence with the consent of the Defendant as follows:
• Exhibit "A" E-mail from the Plaintiff to the Planning Board of Clifton Park dated January 11, 2021;
• Exhibit "B" Excerpts of Planning Board Minutes of the Town of Clifton Park which are undated but make reference to events that occurred in October, 2020;
• Exhibit "C" A photograph dated November 12, 2021 of 2B Eastern Drive, Clifton Park, New York;
• Exhibit "D" A photograph dated November 13, 2021;
• Exhibit "E" A photograph dated November 13, 2021;
• Exhibit "F" Identified as a weather chart and was not accepted into evidence.
• Exhibit "G" An appearance ticket addressed to Mr. Massaroni to appear in Clifton Park Town Court on December 9, 2021 concerning violation of Town Ordinance No. 86-7, paragraph "c" - to prevent an increase in turbidity and surface waters; and
• Exhibit "H" Site Plan for the property of 132/134 Lapp Road dated September 5, 2020.
Plaintiff's testimony and claim for damages essentially sounds in negligence and nuisance for allowing water to run off of the property the Defendant was developing at 132/134 Lapp Road in the Town of Clifton Park. Generally speaking, a private nuisance claim can be sustained where the Defendant's intentional conduct caused the runoff to flood Plaintiff's property. A negligence claim can be sustained where it is found that the Defendant knew or should have known his action or failure to act created the water flow problem that caused Plaintiff's damage. Wfe Ventures v. Gbd Lake Placid , 197 A.D.3d 824, 832, 153 N.Y.S.3d 214 [3d dept. 2021]. Plaintiff claims that Defendant failed to properly install storm water system that would prevent the storm water running from the Lapp Road property to the Plaintiff's property and into the street on Easton Drive. The Plaintiff claims the Defendant ignored the Town Officials' orders to remedy the storm water system installed by the Defendant.
Plaintiff claims on the day in question, November 12, 2021, Plaintiff's car was parked on the street on Easton Drive opposite his driveway. During a rainfall, water runoff came from the property under development at 132/134 Lapp Road, across Plaintiff's property at 2B Easton Drive and onto the street flooding Easton Drive. The Plaintiff argues that the Defendant was cited by the Town of Clifton Park's Stormwater Management Technician, Scott Reese, prior to and after the incident in question. Plaintiff claims that Exhibit "1" ordered Mr. Massaroni to stop work on 132/134 Lapp Road as the grading along the rear portion of the foundation wall was not in conformance with the approved site plans (Plaintiff's exhibit "1") and Mr. Reese advised the Defendant:
"The concern with the additional fill is the impact it may have with the approved stormwater management area - shallow grassy depression #6/ Modified site plans will need to be submitted to the Planning Department that show the original stormwater design will still work within the existing site parameters ... the Stop Work Order will be modified to a Stop Work Order for just site work in the back portion of 134 Lapp Road, once the recent fill along the back foundation is removed, the silt fence is installed, and a sediment trap along the back is installed."
Plaintiff argues that the Defendant was ordered to stop work by way of a notice left for the Defendant on September 21, 2021 that directed the Defendant to stop all work until sediment traps are installed and new site plans are received and approved.
Plaintiff also points to the e-mail from Mr. Reese to the Defendant stating on the day in question (November 12, 2021), Plaintiff's exhibit "3", that Mr. Reese witnessed an illicit discharge of sediment laden runoff leaving the construction site of 132/134 Lapp Road across the Plaintiff's property and into the Town of Clifton Park's closed drainage system. (Exhibit "3" in evidence.) Plaintiff also submitted exhibit "5", (in evidence), a letter from Steven Myers, Director of Building and Zoning Stormwater Management Officer of the Town of Clifton Park to the Defendant dated November 18, 2021. In this letter, Mr. Meyers tells the Defendant that sediment laden storm water runoff was observed on November 12, 2021 entering the Town owned closed drainage system on Easton Drive. Mr. Myers describes this as a "illicit discharge violation". Mr. Myers also notes that per the August 4, 2021 Stop Work Order, Defendant was to install a sediment trap on the back of 134 Lapp Road. Per Mr. Myers, (exhibit "5"), the sediment trap had not been installed as of November 18, 2021.
Plaintiff submitted various photographs (exhibits "2A-2E") demonstrating water flowing across his property from the construction site into the street of Easton Drive in Clifton Park, noting flooding in the vicinity. There is a photograph of a white vehicle in the road. (Plaintiff's exhibits "2A" and "2E".) The photographs also demonstrate muddy water flowing across Plaintiff's property into the street on Easton Drive. (Plaintiff's exhibits "2D" and "2E".) Plaintiff avers that as the Defendant did not follow the direction of the officials of the Town of Clifton Park by failing to construct a silt fence and a sediment trap, the street flooded and damaged his car.
In support of his claim for damages, Plaintiff submitted exhibit "6", an invoice from Capitaland GMC-Subaru detailing a cost of $118.00 plus tax for a total of $127.44. This exhibit indicates there was "no audio sound or speedometer function". The invoice notes that the amplifier under the seat has water damage and should be replaced. The estimate for replacement was $900.00 plus tax.
The Defendant testified on his own behalf and believes that the Plaintiff failed to state a cause of action. Specifically, Defendant claims that there is no causal relationship between the action taken by the Stormwater Management Technician in the Town of Clifton Park against him and the subsequent flooding of the street and the Plaintiff's car. Defendant claims that the stormwater that ran across his property ran across his property prior to the date in question. Defendant claims he was cited for the sediment draining off of the construction site onto the Plaintiff's property and not the stormwater flowing across Plaintiff's property. Defendant also claims that the flooding was caused by the rainfall and as rain is a "common enemy" he bears no responsibility for the resultant damage to Plaintiff's car. LEGAL PRECEDENT
The seminal case on point is Kossoff v. Rathgeb-Walsh, Inc. , 3 N.Y.2d 583, 170 N.Y.S.2d 789, 148 N.E.2d 132 [1958]. In Kossoff , the lawsuit involved a claim for damages caused by surface water flowing from one lot upon an adjoining lot. The Plaintiff in that case had a lot that was lower in grading than the Defendant's lot. The Defendant in Kossoff developed a vacant lot into a gas station. The Defendant did not install any leader pipes, drains or ditches. There, the Court of Appeals held:
"It has never been disputed that while one leaves his land in its natural condition, he is not required to adopt measures to prevent the flowage of surface water from his land to that of his neighbor." Id. at 587, 170 N.Y.S.2d 789, 148 N.E.2d 132.
In deciding the matter in favor of the Defendant, the Court held that both [Plaintiff and Defendant]:
"have equal rights to improve their properties, come what may to the surface water, provided, of course, that the improvements are made in good faith to fit the property to some rational use to which it is adapted, and that the water is not drained into the other property by means of pipes or ditches." Id. at 589-590, 170 N.Y.S.2d 789, 148 N.E.2d 132.
The Kossoff Court found in favor of the Defendant, as the Defendant in that case did not use any artificial means to divert water.
15 years later, the Appellate Division, Third Department expanded upon the rule set out in the Kossoff case in Lytwyn v. Wawarsing , 43 A.D.2d 618, 349 N.Y.S.2d 35 [3d dept. 1973]. There, the Appellate Division stated:
"Creating a channel which would discharge water onto another's lands constituted an actionable wrong without requiring a showing that such channel was constructed or maintained in a defective, unsafe, dangerous or obstructive manner." Id. at 619, 349 N.Y.S.2d 35.
The Rule in Kossoff was again further expanded in 2005 in Long v. Sage Estate Homeowners Assn., Inc. , 16 A.D.3d 963, 792 N.Y.S.2d 219 [3d dept. 2005]. In Long , the Third Department stated:
"One will be liable if he or she diverts water onto an abutting premises by ‘artificial means’ ". Id. at 965, 792 N.Y.S.2d 219.
In the Long case, the Defendant constructed a berm that channeled or increased the flow of surface water onto Plaintiff's land so as to cause damage to Plaintiff's property.
More recently, the Third Department visited the issue in the matter of Wfe Ventures v. Gbd Lake Placid , 197 A.D.3d 824, 153 N.Y.S.3d 214 [3d dept. 2021]. There, the Third Department held:
"A landowner will not be liable for damages caused by the runoff of surface water onto a neighbor's land as long as it was the result of an improvement to the landowner's property undertaken ‘in a good faith effort to enhance the usefulness of the property’ and, of more significance here, ‘no artificial means, such as pipes and drains, are used to divert the water thereon’ ..." Id. at 829, 153 N.Y.S.3d 214.
The Appellate Division further noted:
‘the diversion of artificial means ... is not strictly limited to the use of pipes, drains and ditches and may otherwise be established where it is demonstrated that the net effect of the defendant's improvements so changed, channeled or increased the flow of surface water onto the plaintiff's land ...’ Id. at 829, 153 N.Y.S.3d 214. [Citation omitted.]
DISCUSSION
The facts adduced at trial indicate that the Defendant constructed two duplex homes at 132/134 Lapp Road in the Town of Clifton Park. 132/134 Lapp Road abuts Plaintiff's parcel to the rear. Plaintiff's parcel is on Easton Drive in the Town of Clifton Park. The record establishes that the Defendant applied to the Planning Board of the Town of Clifton Park and was required to install certain stormwater runoff measures. Indeed, Defendant was required to design stormwater prevention plan. The Defendant's plan, as demonstrated by Defendant's exhibit "H", clearly indicates the same. The proof adduced at trial demonstrates that the Defendant, for whatever reason, was not properly abiding by the approved plan and was advised the same on two occasions, prior to the incident in question. Defendant was informed by the Town officials that stormwater was coming across the Plaintiff's property and flooding the street on Easton Drive. The proof adduced at trial indicates that there was no remedy to that situation before the incident on November 12, 2021. The water flow from the Defendant's property across the Plaintiff's property and into the street is demonstrated by the photographic evidence provided both by the Plaintiff and Defendant. There is no proof in the record that demonstrates that the cause of the flood was caused by some other intervening or superceding event, such as an unusually heavy rainfall commonly referred to as a "50 year storm" or a "100 year storm".
As a result, the Plaintiff has demonstrated by a preponderance of the evidence that the Defendant in so constructing the lots at 132/134 Lapp Road artificially caused water to run across Plaintiff's property and to flood the street on Easton Drive. Defendant was advised that this event was occurring and took no action to remedy the situation, though he was directed to do so.
NOW, based upon the foregoing, it is hereby
ORDERED AND ADJUDGED, that the Plaintiff has been damaged by Defendant's negligence and creation of a nuisance as hereinbefore described; and it is further
ORDERED AND ADJUDGED, that the Plaintiff has a Judgment over and against the Defendant in the amount of $1,099.44, (inclusive of sales tax), together with a $15.00 filing fee for a total Judgment of $1,114.44.