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Paul Marinaccio, Sr v. Town of Clarence

December 30, 2011

PAUL MARINACCIO, SR.,
PLAINTIFF-RESPONDENT,
v.
TOWN OF CLARENCE,
DEFENDANT,
AND
KIEFFER ENTERPRISES, INC.,
DEFENDANT-APPELLANT. (APPEAL NO. 1.)



Appeal from a judgment of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered November 24, 2009.

Marinaccio v Town of Clarence

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 30, 2011

PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND LINDLEY, JJ.

The judgment awarded plaintiff money damages against defendant Kieffer 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 caused by 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 adjacent to plaintiff's property located in defendant Town of Clarence (Town). Following a trial, the jury returned 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. In appeal No. 1, KEI appeals, as limited by its main brief, from that part of the judgment awarding plaintiff punitive damages against it. In appeal No. 2, KEI appeals from the order settling the record in appeal No. 1.

Addressing first the order in appeal No. 2, we agree with KEI that Supreme Court erred by excluding from the record the opposing papers and reply papers with respect to plaintiff's motion in limine seeking to preclude the testimony of an appraisal expert for the Town, as well as the order determining that motion (see CPLR 5526; 22 NYCRR 1000.4 [a] [2]). We thus modify the order in appeal No. 2 accordingly. Contrary to KEI's contention, however, we conclude under the circumstances of this case that the court properly excluded certain superseded pleadings from the record in appeal No. 1 (see Aikens Constr. of Rome v Simons, 284 AD2d 946, 947; Millard v Delaware, Lackawanna & W. R.R. Co., 204 App Div 80, 82).

Turning back to appeal No. 1, we view the points in KEI's main brief that the court "erred in refusing to dismiss the punitive damages claim where no evidence was offered to prove that [KEI acted] intentionally, maliciously, or with near criminal intent" and that "the evidence offered by plaintiff [did not meet] the strict' standard of proving that [KEI] acted maliciously, willfully and with near criminal intent" as constituting a contention 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 of proving that the trespasser acted with actual malice involving an intentional wrongdoing, or that such conduct amounted to a wanton, willful or reckless disregard of plaintiff['s] rights' " (Western N.Y. Land Conservancy, Inc. v Cullen, 66 AD3d 1461, 1463, appeal dismissed 13 NY3d 904, lv denied 14 NY3d 705, rearg denied 15 NY3d 746; see West v Hogan, 88 AD3d 1247, 1249-1250). To establish its entitlement to relief on its legal insufficiency contention, KEI "had to [demonstrate] . . . that there [was] simply no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the 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).

Here, there is a valid line of reasoning supporting the jury's conclusion that KEI's conduct was sufficiently egregious to warrant an award of punitive damages. The evidence presented at trial establishes that, in conjunction with the approval process for the third phase of the subdivision (hereafter, Phase III), KEI's sole owner, Bernard G. Kieffer (Kieffer), retained an engineering firm to prepare plans for that part of the subdivision. Those plans included drainage calculations, which were intended to estimate the amount of water that would flow from the subdivision's roads to storm sewers, and from there to a mitigation pond and into a shallow furrow that traversed plaintiff's property.

Prior to the development of Phase III, however, there were drainage problems at the subdivision. By June 9, 2000, the Town became cognizant of those drainage issues, and recognized that its ability to extend and maintain ditches to a road that formed the northern boundary of plaintiff's propertywas essential to resolving those problems. Moreover, the Town and 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 of plaintiff's property, and the Town noted that it would "contact [plaintiff] regarding an easement along his west property line." KEI also hired a contractor to clean the furrow both by backhoe and 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 to allow water to flow onto his property, and Phase III was approved, subject to several conditions designed to facilitate drainage in the area, on June 21, 2000. During Phase III construction, KEI built a pond next to plaintiff's property, which was fed by storm sewers and drained by two 12-inch pipes that, according to Kieffer, were intended to release water into the furrow on plaintiff's property. Plaintiff testified at trial that the outflow pipes were installed approximately one foot inside his property line. According ...


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