Marinaccio v. Town of Clarence

• Decision Date: 21 March 2013
• Citation: 2013 N.Y. Slip Op. 01868,20 N.Y.3d 506,986 N.E.2d 903,964 N.Y.S.2d 69
• Parties: Paul MARINACCIO, Sr., Respondent, v. TOWN OF CLARENCE, Defendant, and Kieffer Enterprises, Inc., Appellant.
• Court: New York Court of Appeals Court of Appeals

20 N.Y.3d 506

986 N.E.2d 903

964 N.Y.S.2d 69

2013 N.Y. Slip Op. 01868

Paul MARINACCIO, Sr., Respondent,

v. TOWN OF CLARENCE, Defendant,andKieffer Enterprises, Inc., Appellant.

Court of Appeals of New York.

March 21, 2013.

Phillips Lytle LLP, Buffalo (Michael B. Powers and Patricia A. Mancabelli of counsel), for appellant.

Lipsitz Green Scime Cambria LLP, Buffalo (Joseph J. Manna and Kenneth E. Webster of counsel), for respondent.

OPINION OF THE COURT

Chief Judge LIPPMAN.

The question presented by this case is whether the evidence was sufficient to find defendant liable for punitive damages for intentional diversion of storm water onto plaintiff's property, which caused extensive damage to his land, constituting the torts of trespass and nuisance. We find that although the injury was considerable and the tortious acts undeniably intentional, the evidence in this case was insufficient for an award of punitive damages.

Plaintiff Paul Marinaccio and defendant Kieffer Enterprises, Inc. (KEI) are adjoining landowners in the Town of Clarence, Erie County (Town). KEI was a small residential real estate company, operated by 82–year–old Bernard Kieffer. KEI sought to develop the second and third phases of a residential subdivision on his land called “Lexington Woods” and began the process of planning. KEI submitted a plan to the Town for its approval. The approved plan required that water from the west side of the development would flow into a storm sewer and then into a ditch, which was to create a mitigation pond on the northeast section of Lexington Woods. According to the Town Engineer, the ditch was on KEI's property. But as the Town later discovered, this ditch was actually located on plaintiff's property, and it was used without plaintiffs permission.

KEI also should have known that this ditch did not have the capacity to contain the large amount of water that KEI diverted. Worse, KEI's design of the mitigation pond bordering plaintiff's property, the purpose of which was to retain water and prevent it from discharging downstream, was insufficient in size to handle the flow of water from the surrounding area. To address the problem, KEI installed two drainage pipes and routed the quickly rising water into an abandoned farmer's furrow located on plaintiff's land, again, without plaintiff's permission, resulting in over 30 acres of flooded wetland.

This newly created wetland caused mosquitos to breed and frogs to gather on plaintiffs property, about which plaintiff is particularly phobic. Consequently, plaintiff had problems traversing his property without the assistance of his family and friends, whom plaintiff would often call on to remove frogs from his driveway and near the door of his home.

Plaintiff personally contacted Bernard Kieffer about the flooding, but was told that the flooding was “[not] his problem.” Plaintiff's counsel also sent a letter to Mr. Kieffer, demanding assistance cleaning up the flooding, to which he received no response. However, according to KEI, plaintiff refused to allow the Town to clean out the ditch on his property, which would have significantly alleviated the flooding by allowing water to move through it more easily. In fact, when the Town arrived to clean the ditch, plaintiff became enraged and would not allow the Highway Superintendent, or any of the Town's workers to enter his property. Thereafter, the Town Engineer met with plaintiff to discuss the Town's assistance with other remedial efforts, but according to the Town and KEI, plaintiff again became enraged and ordered him to leave. The Town admittedly made no further efforts to clean the ditch.

Plaintiff commenced this action against KEI and the Town alleging, among other things, trespass and nuisance and seeking money damages for alleged intentional diversion of water onto his property. KEI moved, at the close of proof, to dismiss the punitive damages claim against it based on insufficiency of the evidence. The trial court denied that motion. The jury returned a verdict of $1,313,600 for plaintiff against the Town for compensatory damages. The jury also awarded plaintiff $328,400 in compensatory damages and $250,000 in punitive damages against KEI.

Following the denial of KEI's and the Town's posttrial motions, the parties settled all but the punitive damages claim. KEI appealed that part of Supreme Court's judgment against it which awarded $250,000 in punitive damages plus interest. The Appellate Division affirmed (90 A.D.3d 1599, 936 N.Y.S.2d 412 [4th Dept.2011] ). The majority characterized KEI's argument as “a contention that the award of punitive damages is not supported by legally sufficient evidence” ( id. at 1600, 936 N.Y.S.2d 412) and concluded that a valid line of reasoning did exist to support “the jury's conclusion that KEI's conduct was sufficiently egregious to warrant an award of punitive damages” ( id.).

Two Justices dissented on the basis that “insufficient evidence [existed] in this record that KEI was motivated by maliciousness or vindictiveness or that KEI engaged in such ‘outrageous or oppressive intentional misconduct’ to warrant a punitive damages award” ...