| Marinaccio v Town of Clarence |
| 2011 NY Slip Op 09691 [90 AD3d 1599] |
| December 30, 2011 |
| Appellate Division, Fourth Department |
| Paul Marinaccio, Sr., Respondent, v Town of Clarence, Defendant,and Kieffer Enterprises, Inc., Appellant. (Appeal No. 1.) |
—[*1] Lipsitz Green Scime Cambria LLP, Buffalo (Joseph J. Manna of counsel), forplaintiff-respondent.
Appeal from a judgment of the Supreme Court, Erie County (Frederick J. Marshall, J.),entered November 24, 2009. The judgment awarded plaintiff money damages against defendantKieffer Enterprises, Inc. upon a jury verdict.
It is hereby ordered that the judgment so appealed from is affirmed without costs.
Memorandum: Plaintiff commenced this action asserting causes of action for, inter alia,trespass and private nuisance and seeking damages for flooding on his property allegedly causedby the intentional flow of water onto his property. The water originated from a subdivision(hereafter, subdivision) developed by defendant Kieffer Enterprises, Inc. (KEI) on land adjacentto plaintiff's property located in defendant Town of Clarence (Town). Following a trial, the juryreturned a verdict in favor of plaintiff on liability. The jury awarded plaintiff a total of$1,642,000 in compensatory damages, as well as punitive damages of $250,000 against KEI. Inappeal No. 1, KEI appeals, as limited by its main brief, from that part of the judgment awardingplaintiff punitive damages against it. In appeal No. 2, KEI appeals from the order settling therecord in appeal No. 1.
Addressing first the order in appeal No. 2, we agree with KEI that Supreme Court erred byexcluding from the record the opposing papers and reply papers with respect to plaintiff's motionin limine seeking to preclude the testimony of an appraisal expert for the Town, as well as theorder determining that motion (see CPLR 5526; 22 NYCRR 1000.4 [a] [2]). We thusmodify the order in appeal No. 2 accordingly. Contrary to KEI's contention, however, weconclude under the circumstances of this case that the court properly excluded certain supersededpleadings from the record in appeal No. 1 (see Aikens Constr. of Rome v Simons, 284AD2d 946, 947 [2001]; Millard v Delaware, Lackawanna & W. R.R. Co., 204 App Div80, 82 [1923]).
Turning back to appeal No. 1, we view the points in KEI's main brief that the court "erred[*2]in refusing to dismiss the punitive damages claim whereno evidence was offered to prove that [KEI acted] intentionally, maliciously, or withnear criminal intent" and that "the evidence offered by plaintiff [did not meet] the 'strict' standardof proving that [KEI] acted maliciously, willfully and with near criminal intent" as constituting acontention that the award of punitive damages is not supported by legally sufficient evidence. "'[T]o recover punitive damages for trespass on real property, [a plaintiff has] the burden ofproving that the trespasser acted with actual malice involving an intentional wrongdoing, or thatsuch conduct amounted to a wanton, willful or reckless disregard of plaintiff['s] rights' " (Western N.Y. Land Conservancy, Inc. vCullen, 66 AD3d 1461, 1463 [2009], appeal dismissed 13 NY3d 904 [2009],lv denied 14 NY3d 705 [2010], rearg denied 15 NY3d 746 [2010]; see West v Hogan, 88 AD3d 1247,1249-1250 [2011]). To establish its entitlement to relief on its legal insufficiency contention, KEI"had to [demonstrate] . . . 'that there [was] simply no valid line of reasoning andpermissible inferences which could possibly lead rational [persons] to the conclusion reached bythe jury on the basis of the evidence presented at trial' " (Winiarski v Harris [appeal No.2], 78 AD3d 1556, 1557, quoting Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]).
Here, there is a valid line of reasoning supporting the jury's conclusion that KEI's conductwas sufficiently egregious to warrant an award of punitive damages. The evidence presented attrial establishes that, in conjunction with the approval process for the third phase of thesubdivision (hereafter, Phase III), KEI's sole owner, Bernard G. Kieffer (Kieffer), retained anengineering firm to prepare plans for that part of the subdivision. Those plans included drainagecalculations, which were intended to estimate the amount of water that would flow from thesubdivision's roads to storm sewers, and from there to a mitigation pond and into a shallowfurrow that traversed plaintiff's property.
Prior to the development of Phase III, however, there were drainage problems at thesubdivision. By June 9, 2000, the Town became cognizant of those drainage issues, andrecognized that its ability to extend and maintain ditches to a road that formed the northernboundary of plaintiff's property was essential to resolving those problems. Moreover, the Townand Kieffer knew that, as a result of the additional construction in the subdivision, "there [would]be more water dumping onto adjoining properties to the north and west," i.e., in the area ofplaintiff's property, and the Town noted that it would "contact [plaintiff] regarding an easementalong his west property line." KEI also hired a contractor to clean the furrow both by backhoeand by hand as a condition of proceeding with Phase III.
The parties do not dispute that the Town and Kieffer did not obtain plaintiff's permission toallow water to flow onto his property, and Phase III was approved, subject to several conditionsdesigned to facilitate drainage in the area, on June 21, 2000. During Phase III construction, KEIbuilt a pond next to plaintiff's property, which was fed by storm sewers and drained by two12-inch pipes that, according to Kieffer, were intended to release water into the furrow onplaintiff's property. Plaintiff testified at trial that the outflow pipes were installed approximatelyone foot inside his property line. According to the trial testimony of plaintiff's expert engineer,KEI routed more water from Phase III to plaintiff's property than was called for by its drainageplans.
After the construction of Phase III, the nature of plaintiff's property changed. Plaintiff'swetlands consultant testified at trial that he estimated that there were only six acres of wetland onplaintiff's property in 2001, and that the wetland subsequently expanded to the point thatplaintiff's property contained 19.5 acres of wetland in 2006; 24.94 acres of wetland in 2008; and30.23 acres of wetland by 2009. Moreover, plaintiff's wetlands consultant observed a berm onpart of plaintiff's property in 2006, which plaintiff had discovered in 2000 or 2001 andcharacterized as about 500 or 600 feet long. Plaintiff's wetlands consultant believed that the [*3]berm was the result of "ditch maintenance" several years earlier, atwhich point spoils from the furrow were placed on the east side of the furrow, i.e., on the side ofthe furrow opposite the subdivision. He concluded that migrating water on plaintiff'sproperty was blocked by the berm, and that the growth of the wetland on plaintiff's property wasdue in part to the berm and in part to the presence of more water on the site. We conclude that theforegoing evidence is legally sufficient to allow the jury to conclude that KEI knowingly andintentionally disregarded plaintiff's property rights in a manner that was either " 'wanton, willfulor reckless' " (Cullen, 66 AD3d at 1463; see Vacca v Valerino, 16 AD3d 1159, 1160 [2005]; FarewayHgts. v Hillock, 300 AD2d 1023, 1025 [2002]; see generally Winiarski, 78 AD3d at1557). For the same reasons, we conclude that the court properly denied KEI's motion to dismissthe punitive damages claim at trial (see generally Golonka v Plaza at Latham, 270 AD2d667, 670-671 [2000]).
Likewise, we reject KEI's contention that the court erred in concluding that KEI's failure toplead a drainage easement as an affirmative defense constituted a waiver thereof (see Cronk vTait, 279 AD2d 857, 859 [2001]; see generally Griffith Energy, Inc. v Evans, 85 AD3d 1564, 1566[2011]). The easement in question permitted the Town to maintain a drainage ditch on plaintiff'sproperty "for the disposal and dispersal of surface waters from the adjoining premises," but wasconsidered for the first time on the first day of trial. Moreover, based on a land survey preparedby the Town in 1994 upon which plaintiff relied in purchasing his property in 1995, the easementwas shown to be on the east side of plaintiff's property, i.e., the opposite side of the propertywhere KEI drained water onto that land, and thus the easement is irrelevant to this case.Therefore, even assuming, arguendo, that KEI's further contentions with respect to the easementare properly before us (see Murdoch vNiagara Falls Bridge Commn., 81 AD3d 1456, 1457 [2011], lv denied 17 NY3d702 [2011]; see generally CPLR 5501 [a] [3]), we also conclude that those contentionslack merit.
KEI failed to preserve for our review its additional challenge to the court's jury instruction todisregard evidence that KEI acted reasonably in reliance on engineers and good engineeringpractices (see CPLR 4110-b; Howlett Farms, Inc. v Fessner, 78 AD3d 1681, 1682 [2010], lvdenied 17 NY3d 710 [2011]), as well as its challenge to the verdict sheet (see MacKillop v City of Syracuse, 48AD3d 1197, 1198 [2008]). We decline KEI's request to review those challenges and otherunpreserved issues that it raises on appeal in seeking a new trial. First, that request is raised forthe first time in KEI's reply brief and thus is not properly before us (see Pieri v B&B Welch Assoc., 74AD3d 1727, 1730 [2010]). Second, "[a] court should grant a new trial in the interest ofjustice 'only if there is evidence that substantial justice has not been done . . . aswould occur, for example, where the trial court erred in ruling on the admissibility of evidence,there is newly discovered evidence, or there has been misconduct on the part of the attorneys orjurors' " (Butler v County of Chautauqua, 277 AD2d 964, 964 [2000]), and none of thosecircumstances is present here.
Finally, we have considered KEI's remaining contentions, which include challenges to theadmission of testimony as to the value of plaintiff's property, to that part of the jury charge withrespect to causation, to the alleged inconsistency of the verdict, and to the preclusion of thetestimony of the Town's damages expert. To the extent that those challenges are properly beforeus (see CPLR 5501 [a] [3]; Krieger v McDonald's Rest. of N.Y., Inc., 79 AD3d 1827, 1828[2010], lv dismissed 17 NY3d 734 [2011]; Howlett Farms, Inc., 78 AD3d at1682-1683; Ciesinski v Town of Aurora, 202 AD2d 984, 985 [1994]), we conclude thatthey are without merit. We further note only that none of KEI's remaining contentions is relevantto the ultimate issue before us on appeal, i.e., the propriety of the punitive damages award (cf.Nickerson v Te Winkle, 161 AD2d 1123, 1123-1124 [1990]).
All concur except Scudder, P.J., and Peradotto, J., who dissent in part and vote to modify inaccordance with the following memorandum.
Scudder, P.J., and Peradotto, J. (dissenting in part). We respectfully dissent in part and [*4]would modify the judgment in appeal No. 1 by vacating the awardof punitive damages. In our view, this is not an "exceptional" case where punitive damages arewarranted (Ross v Louise Wise Servs.,Inc., 8 NY3d 478, 489 [2007]; see Smith v Fitzsimmons, 180 AD2d 177, 181[1992]).
The facts are ably set forth by the majority, and we shall not repeat them here. We note at theoutset that there is no question that plaintiff established his cause of action for trespass bydemonstrating that defendant Kieffer Enterprises, Inc. (KEI) "intentionally [discharged water]onto the land belonging to the plaintiff[ ] without justification or permission" (Carlson v Zimmerman, 63 AD3d772, 773 [2009]; see generally PJI 3:8). However, "[s]omething more than the merecommission of a tort is always required for punitive damages. There must be circumstances ofaggravation or outrage, such as spite or malice, or a fraudulent or evil motive on the part of thedefendant[s], or such a conscious and deliberate disregard of the interests of others that theconduct may be called [willful] or wanton" (Prozeralik v Capital Cities Communications,82 NY2d 466, 479 [1993] [internal quotation marks omitted]). Specifically, "[p]unitive damagesare permitted [only] when the defendant[s'] wrongdoing is not simply intentional but evince[s] ahigh degree of moral turpitude and demonstrate[s] such wanton dishonesty as to imply a criminalindifference to civil obligations . . . [P]unitive damages may be sought when thewrongdoing was deliberate and has the character of outrage frequently associated with crime"(Ross, 8 NY3d at 489 [internal quotation marks omitted]).
Although there is no question that KEI discharged water into the furrow and that it did sowith knowledge and intent, we conclude that there is insufficient evidence in this record that KEIwas motivated by maliciousness or vindictiveness or that KEI engaged in such " 'outrageous oroppressive intentional misconduct' " to warrant a punitive damages award (id.; cf. West v Hogan, 88 AD3d 1247,1249-1250 [2011]; Doin v ChamplainBluffs Dev. Corp., 68 AD3d 1605, 1613-1614 [2009], lv dismissed 14 NY3d832 [2010]; Western N.Y. LandConservancy, Inc. v Cullen, 66 AD3d 1461, 1463 [2009], appeal dismissed 13NY3d 904 [2009], lv denied 14 NY3d 705 [2010], rearg denied 15 NY3d 746[2010]; Ligo v Gerould, 244 AD2d 852, 853 [1997]). The record reflects that part of thefurrow was located on land belonging to KEI, while other parts of the furrow traversed plaintiff'sproperty. At least some of the water from the undeveloped property that ultimately became thesubdivision naturally flowed into that furrow. Prior to developing the third phase of the project(hereafter, Phase III), KEI's sole owner, Bernard G. Kieffer, retained an engineering firm toprepare, inter alia, a drainage plan. The plan included drainage calculations, which were intendedto estimate the amount of water that would flow from the subdivision's roads to storm sewers,and from there to a retention pond and into the furrow. Kieffer relied on the expertise of hisengineers to prepare an appropriate drainage plan, and that plan was submitted to, and approvedby, the Engineering Department of defendant Town of Clarence (Town) and the Town Board.Indeed, the record reflects that KEI developed Phase III in accordance with all of the Town'srequirements. With respect to the easement, the Town advised Kieffer that it would obtain aneasement from plaintiff for the increased water flow onto his property. While Kieffer may havebeen negligent in failing to ensure that the Town followed through with its expressed intention,we cannot conclude that such failing warrants an award of punitive damages. At trial, Kieffertestified that it was not his intent to interfere with the use of plaintiff's property, and our reviewof the record discloses no evidence to the contrary.
In sum, "punitive damages are awarded not for the unintended result of an intentional act, butfor the conscious disregard of the rights of others or for conduct so reckless as to amount to suchdisregard" (Hartford Acc. & Indem. Co. v Village of Hempstead, 48 NY2d 218, 227-228[1979]). We conclude that punitive damages are not justified on this record because the harm inthis case—the flooding of plaintiff's property—was not intended by KEI (seeid.; cf. West, 88 AD3d at 1249-1250; Fareway Hgts. v Hillock, 300 AD2d1023, 1025 [2002]). Rather, the flooding was an unintended result of KEI's intentional conduct,i.e., discharging water into the furrow and, thus, [*5]does notwarrant an award of punitive damages (see Hartford Acc. & Indemn. Co., 48 NY2d at227-228). Present—Scudder, P.J., Centra, Fahey, Peradotto and Lindley, JJ.