Batavia Turf Farms, Inc. v. County of Genesee

• Decision Date: 30 May 1997
• Docket Number: No. 1,1
• Parties: BATAVIA TURF FARMS, INC., Appellant, v. COUNTY OF GENESEE, Respondent. GENESEE COUNTY, Third-Party Plaintiff-Appellant, v. CALOCERINOS & SPINA ENGINEERS, P.C., Third-Party Defendant-Respondent, C & S ENGINEERS, Fourth-Party Plaintiff, v. COLD SPRING CONSTRUCTION COMPANY, INC., Fourth-Party Defendant-Respondent. (Appeal)
• Court: New York Supreme Court — Appellate Division

Page 681

659 N.Y.S.2d 681

239 A.D.2d 903

BATAVIA TURF FARMS, INC., Appellant, v. COUNTY OF GENESEE, Respondent.

GENESEE COUNTY, Third-Party Plaintiff-Appellant, v. CALOCERINOS & SPINA ENGINEERS, P.C., Third-Party Defendant-Respondent, C & S ENGINEERS, Fourth-Party Plaintiff, v. COLD SPRING CONSTRUCTION COMPANY, INC., Fourth-Party

Defendant-Respondent. (Appeal No. 1.)

Supreme Court, Appellate Division,

Fourth Department.

May 30, 1997.

Cohen, Swados, Wright, Hanifin, Bradford & Brett, LLP by Charles Getman, Buffalo, for Appellant Batavia Turf Farms, Inc.

Phillips, Lytle, Hitchcock, Blain and Huber by Paul Stecker, Buffalo, for Respondent and Third-Party Plaintiff-Appellant Genesee County.

Harter, Secrest and Emery by Peter Abdella, Rochester, for Third-Party Defendant-Respondent.

Before GREEN, J.P., and LAWTON, DOERR and FALLON, JJ.

MEMORANDUM:

Plaintiff contends that Supreme Court erred in instructing the jury that, in order to sustain a strict liability claim, plaintiff must prove that defendant substantially increased by artificial means the quantity or rate of flow of surface water onto its property. Plaintiff further contends that the court erred in submitting to the jury special interrogatories to that effect. We agree with defendant that plaintiff was not entitled to a strict liability charge in the first instance. The record establishes that, in its notice of claim and amended complaint, plaintiff did not assert a strict liability claim with regard to either the 1991 or the 1992 flood. Moreover, the case was tried on a nuisance theory based on negligence, and plaintiff never sought to amend the pleadings to conform to the proof to assert a strict liability claim. Thus, plaintiff "cannot complain of the [alleged] error, since it resulted in a charge more favorable to the [plaintiff] than it was entitled to have" (Giannetto v. General Exch Ins. Corp., 10 A.D.2d 442, 446, 200 N.Y.S.2d 238; see, 4 N.Y. Jur., Appellate Review, § 403, at 508). In addition, although plaintiff objected at a charge conference to the "substantial increase" language in the court's instruction on strict liability, it did not object to the special interrogatories on that ground. That contention therefore has not been preserved for our review (see, Bichler v. Eli Lilly & Co., 55 N.Y.2d 571, 583, 450 N.Y.S.2d 776, 436 N.E.2d 182).

In any event, we conclude that the court's instruction and special interrogatories on strict liability were proper. To hold defendant landowner strictly liable for the discharge of surface water by artificial means upon plaintiff's land, plaintiff had to establish that the discharge was materially different from the prior drainage (see, 108 N.Y. Jur. 2d, Water, § 124; Gellis v. Town of Harrison, 159 N.Y.S.2d 228, affd. 5 A.D.2d 870, 172 N.Y.S.2d 546, lv. denied 4 N.Y.2d 677, 176 N.Y.S.2d 1025, 152 N.E.2d 255; see generally, Fox v. City of New Rochelle, 240 N.Y. 109, 112, 147 N.E. 544). Here, plaintiff's property was the source of drainage for a large drainage basin, only a portion of which belonged to defendant. Thus, the court properly instructed the jury that defendant must have caused a substantial increase in the quantity or rate of flow of surface water in order to be found strictly liable.

Plaintiff further contends that the court erred in including the "substantial increase" element in its instruction and special interrogatories on plaintiff's nuisance theory based on negligence. Because plaintiff did not object to the court's instruction or special interrogatories on that ground during the charge conference or after the instruction was given,...