New York State Court of Claims

New York State Court of Claims
ROSS FARMS v. STATE OF NEW YORK, # 2020-058-036, Claim No. 119300, Motion No. M-95446

Synopsis

Motion for summary judgment granted; State is entitled to qualified immunity on cause of action premised upon the negligent design of a culvert.

Case information

UID: 2020-058-036
Claimant(s): ROSS FARMS, INC.
Claimant short name: ROSS FARMS
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 119300
Motion number(s): M-95446
Cross-motion number(s):
Judge: CATHERINE E. LEAHY-SCOTT
Claimant's attorney: Woodman and Getman
By: William H. Getman, Esq.
Defendant's attorney: Letitia James, Attorney General
By: Albert D. DiGiacomo, Assistant Attorney General
Third-party defendant's attorney:
Signature date: August 5, 2020
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant Ross Farms, Inc. (Ross Farms) 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 D. DiGiacomo, Esq., Assistant Attorney General, in Support of Motion for Summary Judgment, Ex A [Claim] 2). Defendant now moves for summary judgment dismissing the Claim on the ground that it is entitled to qualified immunity with respect to design decisions for the culvert. Claimant opposes the motion.

In support of its motion, Defendant submits two affidavits from Steven G. Gagnon, a licensed professional engineer with the New York State Department of Transportation (DOT) who was the engineer in charge of the project design and involved in the planning and final design of the New York State Route 12 Lowville/Bush Road Design, P.I.N. 7016.59, which is the subject of this Claim. Mr. Gagnon explained that as part of a project to rehabilitate and reconstruct a section of New York State Route 12 and New York State Route 26, DOT needed to redesign and reconstruct the drainage system encompassing the highway throughout the project area (see Affidavit of Steven G. Gagnon, sworn to on May 20, 2020 [Gagnon Aff.] 3). Claimant's property is located adjacent to a portion of the project area.

Mr. Gagnon "was the engineer in charge of design for this project and the point of contact for those property owners located adjacent to the project area during the design phase" (id. 6). Additionally, Mr. Gagnon was responsible for preparing a Final Design Report for the project (see id. 7; Affirmation of Albert D. DiGiacomo, Esq., Assistant Attorney General in Support of Motion for Summary Judgment, Ex E [Final Design Report]). Mr. Gagnon described that as part of the design of the project, "DOT engineers evaluated the drainage impact in the entire project area, conducting hydraulic studies and other on-site and off-site engineering analysis" (Affidavit of Stephen G. Gagnon, sworn to on June 29, 2020 [Gagnon Reply Aff.] 4 & Ex A). In conducting such analysis, the DOT engineers "applied the design standards found in the Department of Transportation's 1997 Highway Design Manual in effect at the time of this project, including but not limited to HDM section 8.2.1(6)" (Gagnon Reply Aff. 4).

The hydraulic studies conducted by DOT evaluated, among other things, "potential for debris at the . . . culvert" and "the risk of flooding either upstream or downstream" (id. at Ex A [Memorandum from W.A. Stevens to Robert H. Curtis, dated December 29, 2004]). Mr. Gagnon explained that the hydraulic studies and corresponding engineer analysis revealed "storm runoff that ultimately drains to [Claimant's] property consists of two primary sources," an upland area and New York State Route 12 (Gagnon Reply Aff. 5). Mr. Gagnon posited "[t]he upland area is significantly larger than the [New York State Route 12] area, and as such contributes to a higher percentage of the overall storm water discharge to [Claimant's] Property" (id.). Consequently, DOT engineers "determined that the proposed highway drainage alterations that would utilize a system of curbs, catch basins and drainage pipes, as opposed to the existing roadside ditches, would not significantly impact the overall flow through [Claimant's] property because the net change in total flow was relatively low" (id. 6). Additionally, the DOT engineers concluded that "no further downstream tests on [Claimant's] private property was required because the increased flow reaching the structures as a result of the design changes was considered to be insignificant" (id.). Mr. Gagnon affirmed that the hydraulic studies and analysis were incorporated into the highway drainage design portions of the Final Design Report for the project (see id. 4; Gagnon Aff. 8; Final Design Report, at 29-30, 38, and 41).

It is well settled that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). "A moving party must affirmatively establish the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent's proof" (Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [4th Dept 1995]). "The moving party's failure to make a prima facie showing of entitlement to summary judgment requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Vega v Restani Const. Corp., 18 NY3d 499, 503 [2012] [internal quotation marks, citation, and alterations omitted]).

However, if the proponent of a motion for summary judgment has established its prima facie entitlement to judgment as a matter of law, "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez, 68 NY2d at 324; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In determining a motion for summary judgment, the Court must examine the proof in the light most favorable to the party opposing the motion, here, Claimant (see Robinson v Strong Mem. Hosp., 98 AD2d 976, 976 [4th Dept 1983]).

The State is not an insurer of its drainage systems and the mere occurrence of a flood, without more, is insufficient to support a finding of liability (see De Witt Props. v City of New York, 44 NY2d 417, 427 [1978]; Biernacki v Village of Ravena, 245 AD2d 656, 657 [3d Dept 1997]). 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 [2001] [internal quotation marks, citation, and alteration omitted]; Friedman v State of New York, 67 NY2d 271, 284 [1986]; Weiss v Fote, 7 NY2d 579, 589 [1960], rearg denied 8 NY2d 934 [1960]; Schwartz v New York State Thruway Auth., 95 AD2d 928, 929 [3d Dept 1983], affd 61 NY2d 955 [1984]). Contrary to Claimant's contention (see Affirmation of William H. Getman, Esq., in Opposition to Motion for Summary Judgment 12), 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 Carbonaro v Town of N. Hempstead, 97 AD3d 624, 624-625 [2d Dept 2012]; 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 [2015]).

Here, the Claim for property damage 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]). The Court concludes that the defense of qualified immunity is applicable here.

"In order to successfully invoke the qualified immunity defense, [the] defendant ha[s] the burden of demonstrating that its decision with regard to . . . the culvert was the product of a deliberative decision-making process" (Evans, 130 AD3d at 1354 [internal quotation marks and citations omitted]; see Enker v County of Sullivan, 162 AD3d 1366, 1367 [3d Dept 2018]).

To defeat the defense of qualified immunity, a claimant must "show not merely that another option was available but also that the plan adopted lacked a reasonable basis" (Affleck, 96 NY2d at 557; see Weiss, 7 NY2d at 588 ["something more than a mere choice between conflicting opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public"]).

Here, Defendant has met its prima facie burden establishing it cannot be held liable for the design of the culvert under the doctrine of qualified immunity. Defendant conducted detailed hydraulic studies and formulated a Final Design Report in accordance with DOT guidelines in effect at the time that evaluated the flow of water and the propriety of the drainage facilities relative to Claimant's property (see Gagnon Reply Affidavit Ex A; Ideal, UID No. 2014-044-008 [State entitled to qualified immunity for claim for property damage premised upon negligent design of drainage system where hydraulic study performed as part of plan, drainage system developed in accordance with DOT's design manual, and impact of drainage system on the claimant's property was considered]). Ross Farms was specifically considered in the planning and design of this project as engineering decisions supported by study results indicated there would be insignificant changes in water flow as a result of the design changes proposed under the Final Design Plan (see generally Final Design Report, including appendices).

In opposition, Claimant fails to raise a triable issue of fact to defeat Defendant's entitlement to judgment as a matter of law. Claimant primarily relies upon the affidavit of John David Ross, Claimant's President. Mr. Ross averred that Defendant is not entitled to qualified immunity because it failed to consider the impact of the culvert on Claimant's property. To support this contention, Mr. Ross points to a portion of the Final Design Report, which he claims, "contains a listing of farms that the State considered to be impacted by the project" and does not include any reference to Claimant (Affidavit of John David Ross, sworn to on June 10, 2020 [Ross Aff.] 6). However, the portion of the Final Design Report referenced by Mr. Ross discusses the impact to certain properties vis a vie acquisition through eminent domain to complete the project (see Final Design Report, at 52 [indicating that the list of farms reflects "[a]nticipated property acquisitions"]). Because no portion of Claimant's property was to be acquired by Defendant to complete this project, Claimant is not named in that portion of the Final Design Report. Moreover, Ross Farms is referenced in various sections of the Final Design Report including as a potential right of way acquisition, among other sections (see e.g. Final Design Report, at 43, 184, 246, 248-250).

Additionally, Claimant has not otherwise raised a triable issue of fact regarding an inadequate study or unreasonable design decision. Although Mr. Ross claims "[a]n issue of fact exists to whether a reasoned evaluation of the downstream water flows was made" (Ross Aff. 7), Claimant presents no proof establishing how the downstream water flow should have been evaluated, what such evaluation would have shown, and how the hydraulic studies as incorporated into the Final Design Plan failed to adequately consider the downstream water flows relative to Claimant's property (see Biernacki, 245 AD2d at 658).

Accordingly, it is hereby:

ORDERED that, Defendant's Motion No. M-95446 is GRANTED and Claim No. 119300 is DISMISSED.

LET JUDGMENT BE ENTERED ACCORDINGLY

August 5, 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 Summary Judgment, dated May 19, 2020.

(2) Affirmation of Albert D. DiGiacomo, Esq., Assistant Attorney General, in Support of Motion for Summary Judgment, dated May 20, 2020, with attachments.

(3) Affidavit of Stephen G. Gagnon, in Support of Motion for Summary Judgment, sworn to on May 20, 2020.

(4) Defendant's Memorandum of Law in Support of Motion for Summary Judgment, dated May 20, 2020.

(5) Affirmation of Affirmation of William H. Getman, Esq., in Opposition to Defendant's Motion for Summary Judgment, dated June 10, 2020.

(6) Affidavit of John David Ross, sown to on June 10, 2020.

(7) Reply Affirmation of Albert D. DiGiacomo, Esq., Assistant Attorney General, in Support of Motion for Summary Judgment, dated June 30, 2020.

(8) Reply Affidavit of Stephen G. Gagnon, in Support of Motion for Summary Judgment, sworn to on June 29, 2020, with attachment.

(9) Supplemental Memorandum of Law in Support of Motion for Summary Judgment, dated June 30, 2020.