McGee v. City of Rensselaer

• Decision Date: 18 October 1997
• Citation: 174 Misc.2d 491,663 N.Y.S.2d 949
• Parties: , 1997 N.Y. Slip Op. 97,582 Thomas McGEE et al., Plaintiffs, v. CITY OF RENSSELAER et al., Defendants.
• Court: New York Supreme Court

Page 949

663 N.Y.S.2d 949

174 Misc.2d 491, 1997 N.Y. Slip Op. 97,582

Thomas McGEE et al., Plaintiffs, v. CITY OF RENSSELAER et al., Defendants.

Supreme Court, Rensselaer County.

Oct. 18, 1997.

McClung, Peters & Simon, Albany, for plaintiffs.

Harris & Bixby, Albany, for Clough, Harbour & Associates, defendant.

Donohue, Sabo, Varley & Armstrong, P.C., Albany, for M.J. Engineering, P.C., defendant.

GEORGE B. CERESIA, Jr., Justice.

Plaintiffs commenced the above-captioned action for damages arising out of the flooding of their property which is situated along the Quackenderry Creek in Rensselaer County. It is alleged that the design and construction of the I-90 Interchange 8 Connector To Route 4 ("I-90 Interchange"), Town of North Greenbush, in Rensselaer County, upstream from plaintiffs' property, was the cause of the flooding. Wetlands and natural ground cover on the 62-acre parcel were allegedly destroyed, causing an increase in the volume and velocity of surface water runoff. Two specific flooding events are alleged to have occurred: on July 26, 1995 and January 24, 1996.

Plaintiffs' allege, inter alia, that the defendant engineers are responsible for plaintiffs' damages as a result of their improper preparation of the environmental impact statement and improper design. Plaintiffs allege two causes of action against the defendant engineers: (1) that the actions of the defendant engineers amounted to a deliberate physical invasion of plaintiffs' property and property rights constituting the creation of a nuisance; (2) that the defendant engineers are liable to plaintiffs in damages due to their negligence in the performance of their engineering services.

Defendants, Clough Harbour and Associates ("Clough Harbour") and M.J. Engineering, P.C. ("M.J. Engineering") have made a motion to dismiss the complaint pursuant to CPLR 3211. Defendant Clough Harbor makes a variety of arguments in support of its motion including all of the following: that they made a careful and thorough engineering study of the flow of surface waters and related downstream impacts at the site; that there is no increased runoff from the site; that plaintiffs have not alleged a causal connection between the engineering services provided by Clough Harbor and the flooding which occurred on plaintiffs' properties; that the flooding events which occurred on July 26, 1995 and January 24, 1996 were unusual weather events, the former being the equivalent of a 50-year storm and the latter being the equivalent of a 100-year storm; and that the defendant owed no duty of care to the plaintiffs.

Plaintiffs argue, inter alia, that Clough Harbor knew that the Quackenderry would be directly impacted by the construction but did not properly design and/or plan mitigation measures to counteract the impacts.

The instant action is comprised of three separate actions which were consolidated by order dated March 31, 1997. The three separate actions were captioned (1) Dooris v. City of Rensselaer; (2) McGee v. City of Rensselaer; and (3) Hayes v. City of Rensselaer.

Plaintiffs have raised a threshold issue with regard to the failure of defendant Clough Harbour to support its motion to dismiss with a copy of plaintiffs' complaints. It is well settled that a copy of the pleading moved against is essential for determination of a motion to dismiss (see, Alizio v. Perpignano, 225 A.D.2d 723, 724-725, 640 N.Y.S.2d 191 [Second Dept., 1996]; 344 E. 72 Limited Partnership v. Dragatt, 188 A.D.2d 324, 591 N.Y.S.2d 28 [First Dept., 1992] ).

Defendant Clough Harbour argues that the issue is moot by reason of the inclusion in plaintiffs' opposing papers of the supplemental complaint of Thomas McGee. Ordinarily, the Court would not agree, since the complaints of the other plaintiffs might contain differing causes of action. In this instance, however, the cross-movants, M.J. Engineering, have furnished the missing complaints in their motion papers. The cross motions are based, in part, on the motion papers of Clough Harbour. Thus, there are common issues to the motions and cross motions. Since there is no bar to proceeding to a determination of the cross motions of M.J. Engineering, it would serve no useful purpose to refrain from a determination of the motions of Clough Harbour.

It is well settled that in response to a motion pursuant to CPLR 3211, pleadings shall be liberally construed, the facts as alleged accepted as true, and every possible favorable inference given to plaintiffs (see, Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994]). On such a motion, the Court is limited to examining the pleading to determine whether it states a cause of action (see, Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 [1977]). In examining the sufficiency of the pleading, the Court must accept the facts alleged therein as true and interpret them in the light most favorable to the plaintiff (see, Matter of Board of Educ., Lakeland Cent. School Dist. of Shrub Oak v. State Educ. Dept., 116 A.D.2d 939, 498 N.Y.S.2d 516 [Third Dept., 1986] ). Only affidavits submitted by the plaintiff in support of his or her causes of action may be considered on a motion of this nature (see, Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635-636, 389 N.Y.S.2d 314, 357 N.E.2d 970 [1976]). On such a motion, the court's sole inquiry is whether the facts alleged in the complaint fit within any cognizable legal theory, not whether there is evidentiary support for the complaint (see, Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994]; Pietrosanto v. NYNEX Corp., 195 A.D.2d 843, 844, 600 N.Y.S.2d 802 [Third Dept., 1993]).

With respect to plaintiffs' cause of action in nuisance, it is well settled that everyone who creates a nuisance or participates in the creation of a nuisance is liable therefore (see generally, 81 N.Y.Jur.2d, Nuisances, § 52, at 378-380; Penn Central Transportation Company v. Singer Warehouse & Trucking Corp., 86 A.D.2d 826, 828, 447 N.Y.S.2d 265 [First Dept., 1982]; Hine v. Aird-Don Co., 232 App.Div. 359, 360, 250 N.Y.S. 75 [Third Dept., 1931] ). In this instance, the three supplemental complaints allege that the defendant engineers performed services in connection with the planning and design of the I-90 Interchange. While it is true that plaintiffs allege that the defendants participated in the over-all design and planning of the construction project, it is not alleged that defendants were involved in any of the actual physical construction of the I-90 Interchange and/or the resulting alleged nuisance. The Court concludes that the allegations contained in the supplemental complaints, which allege participation in the design of the project, but do not allege participation in the physical construction thereof and/or physical construction of the alleged nuisance, fail to state a cause of action. The cause of action sounding in nuisance must therefore be dismissed.

With respect to the cause of action in negligence, there is considerable legal authority for the proposition that an engineer or architect may be held liable where his or her negligence has caused personal injury to another (see, e.g., Inman v. Binghamton Housing Auth., 3 N.Y.2d 137, 164 N.Y.S.2d 699, 143 N.E.2d 895 [1957]; see generally, 76 N.Y.Jur.2d, Malpractice, § 28, at 39-40). Courts, however, have long differentiated between causes of action for personal injury and other causes of action, recognizing that different public policy considerations are involved (see, Eaves Brooks v. Y.B.H. Realty, 76 N.Y.2d 220, 223, 557 N.Y.S.2d 286, 556 N.E.2d 1093 [1990] [commercial tenant has no cause of action in property damage against companies which contracted with building owner to maintain defective fire sprinkler system which caused water damage due to flooding]; Palka v. Servicemaster Mgt., 83 N.Y.2d 579, 611 N.Y.S.2d 817, 634 N.E.2d 189 [1994] [upholding cause of action for personal injury against maintenance company hired by building owner]; Hall v. UPS of Am., 76 N.Y.2d 27, 32, 556 N.Y.S.2d 21, 555 N.E.2d 273 [1990] [...