Opinion
# 2017-051-009 Claim No. 122734 Motion No. M-89149 Motion No. M-89150
01-31-2017
KIMBALL BROOKLANDS CORPORATION v. STATE OF NEW YORK
The Delorio Law Group BY: VINCENT GELARDI, ESQ. HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: KEVIN P. AHRENHOLZ, ESQ. Assistant Attorney General
Synopsis
Claim dismissed because the allegations of flooding were vague and did not meet the requirements of Court of Claims Act § 11 (b). Furthermore, the State had no duty to control the flooding caused by a hurricane.
Case information
| UID: | 2017-051-009 |
| Claimant(s): | KIMBALL BROOKLANDS CORPORATION |
| Claimant short name: | BROOKLANDS |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122734 |
| Motion number(s): | M-89149, M-89150 |
| Cross-motion number(s): | |
| Judge: | DEBRA A. MARTIN |
| Claimant's attorney: | The Delorio Law Group BY: VINCENT GELARDI, ESQ. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: KEVIN P. AHRENHOLZ, ESQ. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 31, 2017 |
| City: | Rochester |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read on claimant's motion for summary judgment (M-89149) and defendant's motion to dismiss and/or for summary judgment (M-89150):
1. Claimant's notice of motion (M-89149) with attached affidavit of Vincent Gelardi, Esq., affidavit of Kerry Smith, affidavit of Leonard Jackson, filed August 26, 2016, with exhibits;
2. Affirmation in opposition of Kevin P. Ahrenholz, AAG, dated November 2, 2016, with exhibits;
3. Affirmation in reply of Kevin P. Ahrenholz, AAG, dated December 13, 2016;
4. Reply affidavit of Vincent Gelardi, Esq., filed December 14, 2016, with attached exhibit;
5. Defendant's notice of motion (M-89150) with attached affirmation of Kevin P. Ahrenholz, AAG, filed August 29, 2016, with attached exhibits;
6. Affidavit in opposition of Vincent Gelardi, Esq., filed October 31, 2016, with attached exhibits;
7. Filed papers: claim, verified answer.
Facts
Claimant's apartment complex, known as "Brooklands", was constructed in approximately 1928 on 6.75 acres located at 1000 Palmer Road, Yonkers, New York. The property is improved with three separate buildings containing 138 apartments, garage structures, and open parking areas. It is bound by the Sprain Brook Parkway and Sprain Brook to the south and west, the Bronx River Parkway and Bronx River to the south and east, and Kimball Avenue and Palmer Road to the north. A map of the property shows a trapezoid-shaped lot situated at the confluence of the two waterways and the two major parkways.
For decades, flood control for the property appears to have consisted of a "rustic rubble wall", 5-6 feet high and approximately 748 feet along the southerly boundary. According to the affidavit of Mr. Leonard Jackson, P.E., claimant's flood control and site development expert, sworn to June 14, 2016, "Brooklands has been inundated periodically since the 1930's by the high flood water elevations of the Sprain Brook and Bronx River."
Approximately 600 feet of this rubble wall was removed in the late 1950's after the State appropriated the land to widen the Sprain Brook Parkway. At that time, the State constructed the continuous concrete floodwall at issue in this litigation. There is only hearsay and speculation that the State took any action to modify the height of the wall after it was constructed and the State found no documentation of any changes in the floodwall since its construction in the 1950's. Mr. Jackson had a survey of the floodwall prepared and found its height in 2011 was 84 inches.
The claimant presented documentation to show that Westchester County has a history of significant flooding events, some of which affected Brooklands. Most recently, the property was devastated by a Nor'easter in 2007, which claimant's resident Kerry Smith described as more than 5 feet of water from the confluence of the river and brook that swept over the State's wall. That flooding event and the resultant property damage caused claimant to begin to take action to prevent future flooding. Specifically, in 2009, claimant retained Leonard Jackson to inspect the wall. He opined that there were three problems: the floodwall had no flap gates, the vertical joints in the wall were not sealed and it was not high enough. Following this inspection in 2009, Mr. Jackson designed a new flood wall and drainage system. Then, claimant, with Mr. Jackson's assistance, proceeded to raise money to construct its own floodwall or bring about repairs to the State's wall. In the Spring 2010, a representative of claimant and Mr. Jackson met with a representative of the New York State Department of Transportation (DOT) and Mr. Jackson presented his opinion about the three problems with the wall. Also in 2010, a letter from the City of Yonkers to the DOT addressed problems with the wall that lead to the 2007 flooding of the Brooklands. There was no action taken by the State to inspect or repair the wall in response to these communications.
On August 28, 2011, Hurricane Irene struck the New York metropolitan area, causing widespread and severe flooding. The Bronx River and its basin and the Sprain Brook overflowed, causing more than 5 feet of water to breach the floodwall and inundate the Brooklands. The claimant served a notice of intention to file a claim on November 29, 2011 and filed its claim on May 17, 2013.
Concurrently with the presentation of the claim, the claimant filed insurance claims for the damage to its buildings. It also began the lengthy process of obtaining the necessary approvals for the construction from the municipality and a permit from DOT to construct a new wall per Mr. Jackson's 2009 plans. It began construction of the new wall in June 2014, a "sister" to the State's wall, joining it at the top, but extending an additional several inches above it and 500 feet longer. Additional pumps were also installed on the property. Construction was completed in approximately August 2015.
Claimant's alleged damages were $2,680,000 for design, engineering, legal and construction expenses associated with the new wall. In addition, based on the affidavit of Kerry Smith, one of the claimant's resident-shareholders, the uninsured damage to the property as a result of the 2011 flooding totaled $492,177.17.
The State's motion to dismiss and/or for summary judgment is based on the following: (1) the court lacks subject matter jurisdiction because the claim fails to comply with the pleading requirement of Court of Claims Act 11 (b); (2) those alleged damages associated with the claimant's construction of a new wall constituted an improvement of the claimant's property, not as damages caused by the event on August 28, 2011; (3) the direct damages to claimant's property were covered by the collateral source of claimant's flood insurance and is not recoverable; and (4) the State's wall did not cause the flooding onto claimant's property.
The claimant's motion for summary judgment is based on the allegations that the State was negligent in its design, failure to inspect, and/or failure to repair defective conditions in its floodwall after actual notice of these defects.
In opposition to the claimant's motion, the State argues that, absent a special duty or affirmative action by the State, governmental immunity shields it from liability. Claimant opposes the governmental immunity defense.
State's Motion to Dismiss
The Court of Claims Act § 11 (b) states:
"The claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed. . . . The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated. The claim and notice of intention to file a claim shall be verified in the same manner as a complaint in an action in the supreme court."
These requirements are strictly construed, "substantive conditions upon the State's waiver of sovereign immunity." (Lepkowski v State of New York, 1 NY3d 201, 207 [2003].) Furthermore, the courts have consistently held that failure to satisfy the pleading requirements is a jurisdictional defect. (Kolnacki v State of New York, 8 NY3d 277, 280-81 [2007].)
In this context, the court reviewed the claimant's notice of intention and claim and find that they do not meet the requirements of the statute. Specifically, the claim alleges:
"5. This Claim arose on or about August 28, 2011 as a result of severe flood water intrusion and inundation upon Claimant's said property during and after Hurricane Irene. Claimant's damages were caused by the negligence, carelessness, recklessness, misfeasance, and/or malfeasance of the State of New York, its agents, servants, representatives and/or employees in the design, realignment, construction, maintenance, operation of the highways, waterways and flood control in the area including and affecting the surrounding area of 1000 Palmer Road, Yonkers, New York.
6. Said occurrence and damages resulting therefrom were sustained as a result of the negligence of the State of New York in knowingly allowing, permitting and rendering Claimant's property to be, become and remain victim to a hazardous, dangerous and unsafe condition and known to the State of New York.
7. Claimant's damages were caused by the negligence, misfeasance and/or malfeasance of the State of New York its agents, servants, representatives and/or employees in the design, construction of the highways and, failures to construct, maintain, and properly operate and control the waterways and flood area surrounding 1000 Palmer Road, Yonkers, New York; failing to utilize, provide and/or install appropriate devices or redesign the highways and waterways to control flooding thereby creating a danger to the Claimant's and its residents' property at 1000 Palmer Road, Yonkers, New York; knowingly failing to take measures and precautions necessary to avoid the occurrence; or timely alert Claimant and others to and of the hazard, danger and foreseeable consequences therof.
8. At all relevant times, on or about August 28, 2011 the Kimball Brooklands Corporation's property and building was damaged, including, among other things, the destruction of twenty- four (24) apartments. As a result of the negligence of the State of New York, its agents, servants, representatives and/or employees Claimant sustained various damage to its property including but not limited to the following destruction and/or damages . . ."
These allegations satisfy the requirement of pleading the date of the flood damage to claimant's buildings and provide the address of the claimant's property, and the claim further lists numerous rooms and apartments that were affected by the flooding. However, glaringly omitted is any reference to the State's floodwall or the three problems that Mr. Jackson enumerated in 2009 and continued to reiterate at his deposition and in his affidavit in support of the claimant's motion. Instead, the claim alleges that the State was negligent in its "design, realignment, construction, maintenance, operation of the highways, waterways and flood control" (Paragraph 5 of the Claim) and in "failing to utilize, provide and/or install appropriate devices or redesign the highways and waterways to control flooding." (Paragraph 7 of the Claim.)
The notice of intention, which was attached as an exhibit to the claim, described the State's negligence differently: "Damages were sustained as a result of the negligence of the State of New York due to its failure to implement design changes at said location, construction failure at the designated location and failure to monitor and maintain control of the waterways in the surrounding area of Claimant's property". (Notice of Intention, Paragraph 3.) And,
"negligence and malfeasance of the State of New York its agents, servants, representatives and/or employees in the design, construction, failure to construct, failure to maintain, failure to operate and control the flood area surrounding 1000 Palmer Road, Yonkers, New York; failing to react to prior incidents; failing to provide and/or install, manage and control flood devices and thereby creating a danger to the residents property at 1000 Palmer Road, Yonkers, New York; failing to take measures and precautions necessary to avoid and/or protect against the occurrence; and failing to provide adequate and necessary inspections and monitoring of the site and water control."
(Notice of Intention, Paragraph 5.)
Claimant argues that the State was aware of the problems with the floodwall based on communication it received in 2010 and that the problems were enumerated through various documents in discovery. However, the relevant time frame is notice within 90 days of the incident in 2011 that would give the State sufficient details to investigate and evaluate the claim. The Court of Claims Act does not require the State to "ferret out or assemble information that section 11 (b) obligates the claimant to allege." (Lepkowski v State of New York, 1 NY3d 201, 208 [2003][internal citation omitted].)
Here, the notice of intention is so broad that the State is left with no clear idea of what was negligently designed, constructed or maintained. The claim then goes further to allege negligence pertaining to "highways" and "waterways" without giving any idea of what entities or how they were involved. These vague allegations, with no specific details of defects or maintenance issues, the source of the water, or even any reference to the State's floodwall, do not meet the requirements of Court of Claims Act § 11 (b).
This case is very similar to Alexandrov v New York State Canal Corporation (UID No. 2013-038-566 [Ct Cl, DeBow, J., Nov. 4, 2013]), in which the court was presented with a motion to dismiss claims for property damage allegedly due to the failure of the State to control flooding of claimants' property adjacent to the Erie Canal Basin and Mohawk River Watershed after Hurricane Irene. In dismissing the claim, the court found that:
"The instant claim does not apprise defendant of any alleged design flaw that permitted the flooding, of any particular structure(s) that may have failed, of any maintenance obligation that was poorly accomplished or left undone, of any omission or misstep in operation that allowed claimants' properties to flood, nor of any other particular act or omission related to the waterways that defendant may have utilized as even a toehold for an investigation into its potential liability.
Thus, the Court concludes that the claim does not adequately state the nature of the cause of action, and that it therefore fails to comply with Court of Claims Act § 11 (b)."
(Id.; see also, Patterson v State of New York, 54 AD2d 147, 150 [4th Dept 1976], affd 45 NY2d 885 [1978]; Artale v State of New York, 140 AD2d 919, 920 [3d Dept 1988].)
State's Motion for Summary Judgment
Even if this court found that the claim met the Section 11(b) requirements, the court would grant defendant's motion for summary judgement. The claimant's only basis for liability is that the floodwall constructed by the State in the 1950's failed to protect their property because of design defects (no flap gates and inadequate height) and improper maintenance (open joints). No statement by Mr. Jackson in his affidavit submitted with the claimant's papers nor made at his deposition points to any activity of the State that caused or contributed to the amount of water overflowing from the Bronx River and Sprain Brook due to Hurricane Irene. There is passing reference in claimant's memorandum of law to the State's construction of a channel contiguous to the claimant's property, but there are no documents submitted in admissible form to support the argument that the channel caused or contributed to the flooding. Claimant's only attempt to cast liability on the State is with its removal of the existing rubble wall that was replaced with the concrete floodwall in the 1950's. Since the appropriation documents describe it as being a "rustic rubble wall" that was 5-6 feet high, there can be no doubt that its replacement by the State with a 7-foot concrete wall was an improvement that did not cause the flooding; indeed, Mr. Jackson never considered returning to that quaint method of flood control.
Since the State did not cause the excessive water in the river and brook, or direct it onto the claimant's property, the cases cited by claimant are inapplicable. This is not a situation where the State diverted waters from their natural channels (Mendelson v State of New York, 218 AD 210, 215 [4th Dept 1926], affd 245 NY 634 [1927]; Daly v State of New York, 226 AD 154, 155 [3d Dept 1929]); constructed streets and sidewalks that fell into disrepair (Hines v City of Lockport, 50 NY 236, 238 [1872]) or constructed sewage and drainage systems that collected water and allowed an unnatural overflow (Seifert v City of Brooklyn, 101 NY 136, 139 [1886]).
The applicable analysis is found in Cashin v City of New Rochelle, 256 NY 190 [1931]. There, a naturally-occurring brook running through plaintiff's property served to carry off surface waters from the neighborhood watershed. The city constructed artificial channels to collect the surface water and discharge it into the brook, where it would naturally go even if not so diverted. It was contended by the plaintiff that the force and volume, although not the quantity, of water was thereby substantially increased, causing damage to his property for which the city was liable. The Court held that the burden was on the plaintiff to establish that the flooding was caused by the construction of artificial channels rather than by the heavy rains. Since the flooding only occurred during heavy rainfall, the Court found that natural causes, not the channeling, was the source of plaintiff's damages. (Id. at 194-95; see also Beck v City of New York, 23 Misc 2d 1036, 1046 [Sup Ct, Queens County 1960], affd 16 AD2d 809 [2d Dept 1962].) The same can be said in the instant case; the flooding occurred as a result of natural causes, not as a result of any action by the State. In other words, although the State may not have prevented the flooding as effectively as it could have, it did not cause the claimant's property to be inundated during the hurricane or make the flooding worse.
Furthermore, claimant may be collaterally estopped from relitigating the causation issue after having raised it in its case against Westchester County for the same damages. In a decision rendered after the motions in the instant case were filed, the Appellate Court found that "the overflow was caused by natural phenomena", rather than any conduct by the County. (Kimball Brooklands Corp. v County of Westchester, 144 AD3d 756, 757 [2d Dept 2016].) Although in that case the claimant sought to hold the County liable for failing to prevent the flooding and the State was not a party, the issue of causation was necessarily before the court and summary judgment was granted to the County based on the absence of a duty to control naturally flowing water. (see Albero v State of New York, 26 NY2d 630, 630 [1970]; Nationwide A/S/O of Tsiorvas v State of New York, UID 2014-045-003 [Ct Cl, Lopez-Summa, J., Jan. 9, 2014].) --------
Claimant's reliance on Bronxville Printery Corp. v State of New York (33 AD2d 412 [3d Dept 1970]) is not only misplaced, but misstated. In that case, there were two property locations owned by different claimants. Bronxville Palmer's property was located near Sprain Brook, and the properties of the other claimants were located further downstream from Bronxville Palmer, near the Bronx River in the area where the Sprain Brook joins the Bronx River (possibly near the Brooklands). The event at issue was construction by the State of the New Sprain Brook Parkway in 1960. The original construction schedule called for the temporary closing of the Bronx River Parkway in order to permit excavation for a new and larger channel for the Bronx River and the waters of the Sprain Brook as they flowed into the Bronx River. Due to local objection to the closing of the Parkway, the State changed the work sequence so the project began with the upstream reconstruction of the Sprain Brook channel, which was close to the Bronxville Palmer property, followed by the downstream reconstruction of the Bronx River channel, which was close to the other properties.
Two hurricanes hit the area, on July 30 and August 19, 1960, with heavy rainfall and extensive flooding to all the claimants' properties and the subsequent claims were brought. The Court of Claims dismissed all of the claims upon a finding of no proof of negligence by the State. On appeal, the court reversed only as to Bronxville Palmer for reasons that are critically important and support dismissal of the instant claims.
As to the downstream claimants, the Appellate Court agreed with the lower court:
"The State did not offer any evidence that the rainfalls on July 30 and August 19, 1960 were unprecedented but it did offer expert testimony and evidence that the general flooding in the area of the confluence of the Sprain Brook and Bronx River had occurred in the past and would have occurred at the subject times regardless of the additional element of highway construction. It thus appears that whether or not sound construction practice would have required construction in the downstream area of the Bronx River as a first step, the State did not breach any duty to these claimants in the course of the highway construction which would constitute negligence and be a proximate cause of the flooding."
Bronxville Printery Corp. v State of New York, 33 AD2d 412, 414-15 [3d Dept 1970]. As to Bronxville Palmer, the Appellate Court reversed and ordered a new trial on damages because:
"the record establishes that the movement of the brook some 82 to 105 feet from its former site to its new site approximately 5 to 10 feet from claimant's property line was not accompanied by appropriate safeguards to protect against the reasonably foreseeable flooding of claimant's premises prior to completion of the reconstruction at points further downstream. As to Bronxville Palmer, the record establishes, and we so find, that the State was negligent in failing to provide adequate safeguards in the planning and accomplishment of the reconstruction."
(id. at 415 [3d Dept 1970] [internal citations omitted].) So, it was the activities of the State in moving the stream far beyond its original location and closer to the claimant's property without putting appropriate safeguards in place, that constituted negligence. There is no such activity in the instant case, and the facts are closer to those of the downstream claimants, whose claims were dismissed.
Turning to the governmental immunity defense raised by the State, the court finds that there are no facts to support the argument that the defendant owed a special duty to claimant. To the contrary, there is certainly no allegation in the claim and no evidence presented of a statutory duty, justifiable reliance on the State, nor of action by the State that placed claimant in greater danger than it would have been in with no concrete floodwall. (see McLean v City of New York, 12 NY3d 194 [2009].)
Even though the court does not reach the damages issues in this case, one aspect of the claimant's argument regarding damages warrants discussion. The claimant began planning for a solution to preventing future flood damage following the Nor'easter in 2009 and Mr. Jackson completed his design later that year. Firm in its resolve that the Jackson design was the solution, the claimant forged ahead, obtained a permit to construct the sister wall on State property and a drainage system with new pumps on the claimant's property, completing construction in 2015, long after the 2011 claim arose. Then, in the context of this litigation, claimant essentially sent the State the bill for all of the design, excavation, construction and legal fees associated with the new wall that claimant decided it needed. The defendant is correct that the new wall and drainage system were not only improvements over the 1950's wall, but also improvements to the claimant's property, and not an appropriate measure of damages arising from the 2011 flooding.
The claimant was not without a remedy before pursuing these self-help measures. It could have brought a declaratory judgment action to adjudicate whether the State was responsible to repair or rebuild the floodwall. "The primary purpose of declaratory judgments is to adjudicate the parties' rights before a 'wrong' actually occurs in the hope that later litigation will be unnecessary." (Klostermann v Cuomo, 61 NY2d 525, 538-39 [1984][internal citations omitted]; see also New York Pub. Interest Research Group v Carey, 42 NY2d 527, 530 [1977]; Matter of Town of Mentz v Department of Transp. of State of N.Y., 106 AD2d 870 [4th Dept 1984]; Town of Ohio v People, 264 AD 220, 222 [4th Dept 1942].) However, since the Court of Claims does not have jurisdiction to render a declaratory judgment, claimant cannot seek such relief under the guise of a claim for damages. (see Wikarski v State of New York, 91 AD2d 1174 [4th Dept 1983].)
Conclusion
Based on the above, the defendant's motions to dismiss and for summary judgment are granted and the claimant's motion for summary judgment is denied. Claim no. 122734 is dismissed.
January 31, 2017
Rochester, New York
DEBRA A. MARTIN
Judge of the Court of Claims