Office Park Corp. v. Onondaga County

• Decision Date: 03 November 1978
• Docket Number: MULTI-CITY,No. 5,No. 6,No. 7,No. 2,No. 3,No. 8,No. 1,No. 4,1,2,3,4,5,6,7,8
• Citation: 64 A.D.2d 252,409 N.Y.S.2d 854
• Parties: OFFICE PARK CORPORATION, Respondent, Appeal, v. COUNTY OF ONONDAGA, Appellant, AppealCarl M. BROOKMAN and Lillian M. Brookman, Respondents, Appeal, v. COUNTY OF ONONDAGA, Appellant, AppealPROPERTIES, INC., Respondent, Appeal, v. COUNTY OF ONONDAGA, Appellant, AppealCONKLIN, LABS & BEBEE, INC., Respondent, Appeal, v. COUNTY OF ONONDAGA, Appellant, Appeal
• Court: New York Supreme Court — Appellate Division

Page 854

409 N.Y.S.2d 854

64 A.D.2d 252

OFFICE PARK CORPORATION, Respondent, Appeal No. 1, v. COUNTY OF ONONDAGA, Appellant, Appeal No. 2.

Carl M. BROOKMAN and Lillian M. Brookman, Respondents, Appeal No. 3, v. COUNTY OF ONONDAGA, Appellant, Appeal No. 4.

MULTI-CITY PROPERTIES, INC., Respondent, Appeal No. 5, v. COUNTY OF ONONDAGA, Appellant, Appeal No. 6.

CONKLIN, LABS & BEBEE, INC., Respondent, Appeal No. 7, v. COUNTY OF ONONDAGA, Appellant, Appeal No. 8.

Supreme Court, Appellate Division, Fourth Department.

Nov. 3, 1978.

Ralph I. Greenhouse, County Atty., Syracuse, (Peter R. Eriksen, Syracuse, of counsel), for appellant.

Byrne & Costello, P. C., Syracuse, (Matthew V. Byrne, Jr., Syracuse, of counsel), for respondents.

Before MOULE, J. P., and CARDAMONE, DILLON, HANCOCK and WITMER, JJ.

CARDAMONE, Justice:

In 1974 and 1975 four different plaintiffs' properties in an area known as General Motors Circle in the Town of DeWitt, Onondaga County, were flooded, resulting in eight actions (a separate plaintiffs' suit for each flood) against Onondaga County for negligence. At a bifurcated jury trial favorable verdicts in all the actions were obtained by the four plaintiffs. From the resultant eight judgments, holding it liable for damages, Onondaga County appeals.

The real property owned by plaintiffs, Office Park Corporation, Carl and Lillian Brookman, Multi-City Properties, Inc. and Conklin Labs Bebee, Inc., were first flooded on July 3-4, 1974 and again on September 25-26, 1975 during heavy rainstorms at the time. The flooding occurred when Ley Creek overflowed its banks. Ley Creek is a natural waterway whose watershed contains 29 square miles and discharges into Onondaga Lake. Its drainage basin includes portions of the Town of Dewitt and the Village of East Syracuse. Its five major tributaries are: Bear Trap Creek, North Branch of Ley Creek, South Branch of Ley Creek, Sanders Creek, and Teall Brook. Ley Creek and its branches have a history of flooding, including major floods in May, 1969 and June, 1972.

Onondaga County had previously commissioned a local engineering firm to make recommendations on Ley Creek and its tributaries. In 1969 it established the Bear Trap-Ley Creek Drainage District and authorized the construction of improvements which included the deepening and widening of Ley Creek. Plaintiffs' properties are bounded on the north by the New York State Thruway, on the south by Route 298 and on the east by Town Line Road. The North Branch and South Branch join the Main Branch of Ley Creek immediately northeast of plaintiffs' properties and the Main Branch crosses just north of it. Plaintiffs' properties were included in the Drainage District, and the County of Onondaga, through the District, imposed special taxes against plaintiffs' properties and all other properties located within the District.

Thereafter, the County entered into a series of contracts to perform the work, commencing at Onondaga Lake and working upstream in Ley Creek. Contracts numbered 1, 2 and 3 completed work to a point 5,000 feet west of Town Line Road. Later, instead of continuing with the clearing of Ley Creek from the eastern terminus of contract number 3, however, the County by-passed the GM Circle Area and went upstream to the residential area of East Syracuse with Contract No. 4.

In July, 1972 the local firm of Calocerinos and Spina reported to the County Legislature that additional funds were needed to complete the work previously authorized. Their report recommended an additional $550,000 to complete the Phase I improvements (Contracts # 1, 2 & 3), all of which work was downstream and to perform minor work needed at Teall Brook which was upstream from plaintiffs' properties. The Legislature authorized the additional funds to complete the Phase I improvements which included the clearing of trees and vegetation and the acquisition of necessary rights-of-way from Onondaga Lake to Town Line Road".

In May, 1974 all the Phase I work, except the clearing of trees and vegetation, was completed. At that time the engineers and the Commissioner of Drainage and Sanitation reported to the County Legislature that while the improvements completed had had some effect in alleviating potential flooding at GM Circle (plaintiffs' properties), a detailed survey and study would be needed to determine whether an economically feasible solution to this area's problems was feasible, with the likelihood of major construction. That study resulted in the approval by the County Legislature of Contract No. 8 in January, 1976. Under that contract the entire unimproved balance of the Main Branch of Ley Creek was deepened and widened from a point 5,500 feet west of Town Line Road, easterly to Town Line Road, across the northern part of plaintiffs' properties, then south into the south Branch to Route 298. The sum of $880,000 was authorized for the project.

The floods with which we are concerned occurred July 3-4, 1974, and September 25-26, 1976, after the study of GM Circle was ordered, but before construction had begun under Contract No. 8. Meanwhile, the County performed the minor channel work in Teall Brook, upstream from plaintiffs' property and commencing in August, 1974 the County deepened and widened the Channel of the South Branch upstream to alleviate flooding conditions in the heavily residential East Syracuse area.

It appears that the rainfall during the 1974 flood amounted to 4.25 inches and for 1975, 4.95 inches. The experts at trial agreed that while more rain fell in 1975, the 1974 storm was more severe and the rainfall was more intense, i. e., 3.81 inches of rain fell in seven hours. Plaintiffs' building No. 113 was flooded five inches deep in 1974 and the same building was flooded to a depth of 13 inches in 1975.

At the trial plaintiffs' expert engineer C. William Dunn testified that the channel of Ley Creek immediately west of Town Line Road Bridge (just north of GM Circle) was so constricted as to allow only 155 cubic feet per second of water to pass. Dunn also testified that in his opinion the floods of 1974 and 1975 would not have occurred had the authorized improvements been undertaken and completed as of July 1, 1974. In support of this opinion he described the condition of the creek as being "overgrown with brush. There was trees lying across it and it was silted in". He also noted that the County had applied to the State Department of Environmental Conservation for a permit to remove "old trees, brush, stumps and debris within 50 feet of either side of the stream line". Dunn continued that in his opinion the effect of the County's leaving the channels upstream from GM Circle (i. e., at Teall Brook and Sander's Creek) was to increase the flow of water downstream in Ley Creek and that there would have been more water at plaintiffs' property as a result. He stated that it is the generally accepted engineering method to start at the downstream outlets of a stream and to make improvements in an upstream direction.

On cross-examination Mr. Dunn admitted that he assumed other facts not contained in the hypothetical question when he was asked to answer whether or not the floods would have occurred if the improvements approved had been completed as of July, 1974. He admitted that, in fact, he "didn't know" whether plaintiffs' properties would still have flooded and that he wasn't at all sure whether clearing the vegetation (the only improvement not completed in July, 1974) would have had any effect.

The defendant County's experts were Emmanuel Calocerinos, one of the partners in the firm of Calocerinos and Spina retained by Onondaga County to help establish this drainage district, and John J. Hennigan, Jr., Commissioner of the Department of Drainage and Sanitation for the County.

Mr. Calocerinos testified that the work done upstream on Teall Brook was done in the fall of 1973 and early spring of 1974. He stated that $70,000 was spent to replace a collapsed culvert and an additional $70,000 was spent to eliminate a bend in Teall Brook that was causing a health hazard. Regarding this work Calocerinos was asked whether the purpose of this work was to make the water go downstream quicker and he responded "no, the water would go down there anyway". He further stated that it was never intended under Phase I work to dredge and to widen and deepen the channel of Ley Creek westward from Town Line Road, but only to clear this area after the dredging downstream had been completed. Concerning the effect of the clearing of trees and vegetation, Calocerinos testified that:

"If the trees and vegetation had been cleared from that section of Town Line Road westward to the terminus of Contract 3, it would have had no effect on the flooding in 1974".

Finally, Calocerinos agreed that there was a general plan that the work should start at Onondaga Lake and continue upstream eastwardly. On cross-examination he admitted that the work performed under Contracts 1, 2 and 3 was downstream and that he "jumped the General Motors area of that creek" and went upstream knowing that there was a risk involved in doing that. He conceded that he realized that the risk was that more water would come down in greater velocity downstream to an unimproved area of the stream and that, in fact, the improvements undertaken after the 1974 flood to alleviate the flooding in an entirely residential area of East Syracuse did increase the flow in GM Circle 8/10 of one percent to 1101 cubic feet per second. Witness Hennigan agreed that "sound engineering practice" was to start at the downstream end of the drainage channel and work upstream in stages. He knew at the time that the East Syracuse work was undertaken prior to 1975 (but after serious residential flooding in 1974) that it might have adverse effects downstream at GM Circle.

The jury found the County liable for the 1974...