Motion for leave to amend Claim to assert qualified immunity as an affirmative defense granted.
|Claimant(s):||ROSS FARMS, INC.|
|Claimant short name:||ROSS FARMS|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CATHERINE E. LEAHY-SCOTT|
|Claimant's attorney:||Woodman and Getman
By: William H. Getman, Esq.
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Albert D. DiGiacomo, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 1, 2020|
|See also (multicaptioned case)|
Claimant Ross Farms, Inc. filed this Claim on December 23, 2010, alleging that on September 30, 2010, heavy rains flowed through a culvert installed by the New York State Department of Transportation under New York State Route 12 causing a washout that flowed onto a pond on Claimant's farm and damaged the property. Claimant avers Defendant "negligently failed to review the capacity of the drainage facilities to which the culvert flowed" (Affirmation of Albert DiGiacomo, Esq., Assistant Attorney General, in Support of Motion for Leave to Amend, Ex A [Claim] ¶ 2). Defendant now moves for leave to amend its answer to add qualified immunity as an affirmative defense. Claimant does not oppose the motion.
CPLR 3025 (b) provides that "[a] party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties." "Leave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit" (Great Lakes Motor Corp. v Johnson, 156 AD3d 1369, 1370 [4th Dept 2017] [internal quotation marks and citation omitted]; see McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 ).
It is well settled that the State is entitled to qualified immunity for claims arising out of its highway planning decisions and "may be liable for [such] decision[s] only when its study is plainly inadequate or there is no reasonable basis for its plan" (see Affleck v Buckley, 96 NY2d 553, 556  [internal quotation marks, citation, and alteration omitted]; Friedman v State of New York, 67 NY2d 271, 283-284 ; Weiss v Fote, 7 NY2d 579, 589 , rearg denied 8 NY2d 934 ; Schwartz v New York State Thruway Auth., 95 AD2d 928, 929 [3d Dept 1983], affd 61 NY2d 955 ). Courts have applied the doctrine of qualified immunity to claims of property damage arising from alleged negligence in the design of drainage systems, including the design of culverts (see e.g. Ideal Snacks Corp. v State of New York, UID No. 2014-044-008 [Ct Cl, Schaewe, J., Sept. 24, 2014]; Rozenfine v State of New York, UID No. 2010-009-103 [Ct Cl, Midey, Jr., J., June 29, 2010]; 145 Route 303 Corp. v State of New York, UID No. 2005-029-483 [Ct Cl, Mignano, J., Apr. 7, 2005]; see also Evans v State of New York, UID No. 2014-032-012 [Ct Cl, Hard, J., Jan. 13, 2014], affd 130 AD3d 1352 [3d Dept 2015], lv denied 26 NY3d 910 ).
The Claim here is premised upon Defendant's alleged negligent design of a culvert under New York State Route 12 (see Evans v State of New York, 130 AD3d 1352, 1355 [3d Dept 2015] [holding that deficiency of culvert carrying water from creek under a State road presented a design issue to which the State was entitled to qualified immunity]; Rozenfine, UID No. 2010-009-103 [holding that the State was entitled to qualified immunity and could not be held liable for negligent design or improper installation of a culvert that caused damage to the claimant's property]). Specifically, Claimant avers Defendant installed the culvert in 2009 and "negligently failed to review the capacity of the drainage facilities to which the culvert flowed" (Claim ¶ 2). The Court concludes that the defense of qualified immunity is potentially meritorious. Notably, Claimant does not oppose Defendant's motion to amend its answer (see Affirmation of William H. Getman, Esq., in Opposition to Defendant's Motion for Summary Judgment ¶ 13). Consequently, Defendant's motion to amend its answer to add qualified immunity as an affirmative defense is granted.
Accordingly, it is hereby:
ORDERED that, Defendant's Motion No. M-95445 is GRANTED; and it is further
ORDERD that the amended verified answer annexed to Defendant's motion is deemed served and filed as of the date of this Decision and Order.
July 1, 2020
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims
The Court considered the following in deciding this motion:
(1) Notice of Motion for Leave to Amend, dated May 20, 2020.
(2) Affirmation of Albert D. DiGiacomo, Esq., Assistant Attorney General, in Support of Motion for Leave to Amend, dated May 20, 2020, with attachments.
(3) Affirmation of Affirmation of William H. Getman, Esq., in Opposition to Defendant's Motion for Summary Judgment, dated June 10, 2020.
(4) Reply Affirmation of Albert D. DiGiacomo, Esq., Assistant Attorney General, in Support of Motion for Leave to Amend, dated June 30, 2020.