Opinion
# 2013-031-068 Claim No. 116958 Motion No. M-82884
09-30-2013
JOHN BISSELL, EDNA BISSELL and KELLY BISSELL v. THE STATE OF NEW YORK
Claimant's attorney: LIPPES & LIPPES BY: JOSHUA R. LIPPES, ESQ. Defendant's attorney: LAW OFFICES OF LAURIE G. OGDEN, ESQ. BY: GARY J. O'DONNELL, ESQ.
Synopsis
Claimants failed to adequately rebut competent evidence submitted by Defendant demonstrating it enjoyed a qualified immunity regarding its planning and implementation of highway reconstruction project. Claimants also failed to demonstrate any damages stemming from the allegedly negligently performed project. Defendant's motion for summary judgment granted.
Case information
UID: 2013-031-068 Claimant(s): JOHN BISSELL, EDNA BISSELL and KELLY BISSELL Claimant short name: BISSELL Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 116958 Motion number(s): M-82884 Cross-motion number(s): Judge: RENÉE FORGENSI MINARIK LIPPES & LIPPES Claimant's attorney: BY: JOSHUA R. LIPPES, ESQ. LAW OFFICES OF LAURIE G. OGDEN, ESQ. Defendant's attorney: BY: GARY J. O'DONNELL, ESQ. Third-party defendant's attorney: Signature date: September 30, 2013 City: Rochester Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
In addition to hearing oral argument from counsel, the following papers, numbered 1 to 7, were read on motion by Defendant for summary judgment:
1) Defendant's Notice of Motion, filed January 18, 2013;
2) Affirmation of Gary J. O'Donnell, Esq., dated January 17, 2013, with exhibits;
3) Affidavit of Wesley Alden, P.E., sworn to January 16, 2013, with exhibit;
4) Affidavit of Joshua R. Lippes, Esq., sworn to March 13, 2013, with exhibits;
5) Claimants' Memorandum of Law, dated March 13, 2013;
6) Reply Affirmation of Gary J. O'Donnell, Esq., dated March 18, 2013;
7) Filed Documents: Claim ("Complaint") and Verified Answer.
BACKGROUND
In their claim, filed on June 5, 2009, Claimants allege that Defendant damaged their real and personal property during the course of a New York State Department of Transportation construction project. The project entailed the reconstruction of State Route 19 in the Village of Wyoming in Wyoming County. Specifically, Claimant Kelly Bissell owns the property affected by the project and Claimants John and Edna Bissell are her tenants. The claim alleges negligence, nuisance and trespass. According to the claim, the project, which included replacing sidewalks near the property owned and occupied by Claimants, was so poorly undertaken that Claimants suffered: 1) the loss of use and enjoyment of their property from June of 2007 to the filing of the claim; 2) damage to the property's steps, railings, shrubbery and gardens; and 3) slanting sidewalks with tripping hazards.
A personal injury claim asserted by another Claimant, Steven A. Weber, was previously dismissed.
It appears that Claimants assert that the sidewalk and the driveway Defendant dug up and then replaced now have what Claimants describe as an unreasonable slope. This has allegedly caused a camper parked on their property, and their lawn mower, to "bottom out" and sustain damages. They also allege that the construction project changed the elevation of the roadway and sidewalks in such a way that surface water now drains onto their property, causing flooding and "sink holes" in their yard.
DEFENDANT'S MOTION
With this motion, Defendant seeks summary judgment and dismissal of all causes of action, asserting that the project in question was designed and constructed in compliance with all appropriate standards and, therefore, that Defendant enjoys qualified immunity, insulating it from claims such as this. Defendant also asserts that Claimants have failed to demonstrate that any act or omission on Defendant's part caused actual damage to any of the Claimants' personal or real property.
In any application for summary judgment, the moving party bears a heavy burden in establishing that he or she is entitled to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Andre v Pomeroy, 35 NY2d 361 [1974]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
When the moving party has successfully met its burden, the party who opposes a summary judgment motion must "assemble, lay bare and reveal his proofs, in order to show that the matters set up in his [pleading] are real and are capable of being established upon a trial" (Di Sabato v Soffes, 9 AD2d 297, 301 [1st Dept 1959], appeal dismissed 11 AD2d 660 [1st Dept 1960]). Bald, conclusory assertions (Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 NY2d 255, 259 [1970]) and the shadowy semblance of an issue cannot, by themselves defeat a motion for summary judgment (Di Sabato v Soffes at 300).
The State's liability is also limited by the fact that, in the field of highway design engineering, it is accorded a qualified immunity which can only be overcome with proof that a highway planning decision evolved without adequate study or lacked a reasonable basis (see Friedman v State of New York, 67 NY2d 271, 283 - 284 [1986]; Niles v State of New York, 201 AD2d 774 [3d Dept 1994]). Weiss v Fote (7 NY2d 579 [1960]) is the seminal case that is often cited for the proposition that, because the State's determinations regarding public works and improvements are quasi-judicial or discretionary. Municipalities are granted qualified immunity from liability for roadway planning decisions unless the plan was "evolved without adequate study or lacked reasonable basis" (Weiss v Fote, 7 NY2d 579, 589; see Affleck v Buckley, 96 NY2d 553, 556 [2001]; Friedman, 67 NY2d 271 at 284).
In support of its application, Defendant has provided the affidavit of Mr. Wesley Alden, P.E., the design engineer for the project. He states that all aspects of the project were carefully planned and considered by him and his design team. Further, he asserts that the specifications for the project, and the project as built, fully comply with all applicable standards including the Highway Design Manual and the American Association of State Highway and Transportation Officials manual. He further opines that, in any event, there was no change to the elevation of the roadway or the sidewalk as a result of the project.
In their opposition to Defendant's motion, Claimants offer no opposing expert testimony, but assert that the motion, filed more than 120 days after the filing of the note of issue, is untimely. Claimants also assert that Defendant has failed to meet its burden of proof.
With regard to Claimants' argument that the motion is untimely, Claimants correctly point to Brill v City of New York (2 NY3d 648 [2004]) for the proposition that a motion for summary judgment must generally be made within 120 days, or it is waived. However, because of the complex procedural history of this claim, it is clear that Defendant was in no way dilatory in bringing this motion. Although the motion was made 14 months after the filing of the note of issue, the extensive motion practice that followed the filing of the note of issue, including Claimants' counsel's motion to be removed as counsel for Mr. Weber; the reassignment of the claim to a new judge; and this Court's direction to the parties regarding a new deadline for motions (to which Claimants did not object), I find that the motion is timely and should be determined on its merits.
I do note, with interest, that at the same time Claimants argue that it is far too late to bring this motion, they also argue that it is premature. Claimants assert that the motion is too early because "it is important to reiterate that no scheduling order has been entered requiring Claimants to produce expert disclosure and that the appropriate time for expert disclosure has not yet been reached" (Claimants' Memorandum of Law, page 9, ¶ 2).
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Claimants make no attempt to dispute or contradict Mr. Alden's affidavit concerning the appropriateness of the planning, design and implementation of the project. Rather, Claimants take the position that Defendant has failed to meet its initial burden of proving its entitlement to summary judgment on this motion. Claimants argue that Defendant's legal arguments concerning the applicability of qualified immunity pursuant to Weiss v Fote is misplaced because such immunities are "not applicable to property damage claims" (Claimants' Memorandum of Law, p. 5). Claimants present no authority for this contention.
In fact, case law demonstrates that the doctrine of qualified immunity is applicable in property damage claims. In 145 Route 303 Corp. and Eidman Agency, Inc. v State of New York (UID No. 2005-029-483 [Ct Cl, Mignano, J., Apr. 7, 2005), Judge Mignano applied the Weiss v Fote qualified immunity to a very similar action. "Under the doctrine of qualified immunity, the State may not be held liable unless it is established 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; Weiss v Fote, 7 NY2d 579)" (see also Aldrich v State of New York, 110 AD2d 331 (3d Dept 1985); Sweet v State of New York, 114 Misc 2d 269 (Ct Cl 1982);St. Vladimir's Orthodox Theol. Seminary v State of New York, 63 AD2d 1099 (3d Dept 1978).
Finally, Claimants assert that, because one employee of Defendant contradicted Mr. Alden's statement about the post project elevation, a question of fact exists as to whether the elevation of the sidewalk and roadway caused surface water to run off and flood Claimants' property. They assert that Defendant has failed to address their causes of action for trespass and nuisance regarding this water run-off. In relation to these issues, Claimants contend that this case is similar to Stewart v State of New York (248 AD2d 761 [3d Dept 1998]). In that case, the court addressed a claim relating to trespass and de facto appropriation in which waters were discharged onto the claimant's property after the completion of a highway improvement project.
However, that case deals with a very different situation. Stewart dealt with waters that were collected and diverted onto claimant's property. Here, no water was gathered and diverted or directed onto Claimants' property. Rather, Claimants allege that the raised elevation of the roadway and sidewalk caused surface water to run off onto their property.
Turning again to Judge Mignano's decision in 145 Route 303 Corp. and Eidman Agency, Inc. v State of New York (UID No. 2005-029-483 [Ct Cl, Apr. 7, 2005]),
"In New York State, 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; Prime v City of Yonkers, 192 NY 105; Friedland v State of New York, 35 AD2d 755; Klein v Town of Pittstown, 241 App Div 202; Beck v City of New York, 23 Misc 2d 1036, affd 16 AD2d 809). Liability may attach, however, if the governmental unit collects surface water into channels and discharges it onto private property (see Fox v City of New Rochelle, 240 NY 109, supra; DiRienzo v State of New York, 187 AD2d 879; Musumeci v State of New York, 43 AD2d 288, lv denied 34 NY2d 517)."
In this case, there is no allegation that Defendant collected surface water and discharged it onto Claimants' property. Further, Claimants have failed to demonstrate that Defendant's highway planning decision evolved without adequate study or lacked a reasonable basis. Accordingly, Defendant is entitled to the qualified immunities set forth in Weiss v Fote (7 NY2d 579).
Based upon the foregoing, it is
ORDERED, that Defendant's motion for summary judgment is granted and the claim is dismissed.
September 30, 2013
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims