Tortorici v. Massaroni, 2022-22046

CourtNew York Justice Court
Writing for the CourtHON. PETER J. SCAGNELLI TOWN JUSTICE
PartiesRichard W. Tortorici, III, Plaintiff, v. Anthony Massaroni, Defendant.
Decision Date17 February 2022
Docket Number2022-22046

Richard W. Tortorici, III, Plaintiff,
v.

Anthony Massaroni, Defendant.

No. 2022-22046

Justice Court of the Town of Niskayuna, Schenectady County

February 17, 2022


HON. PETER J. SCAGNELLI TOWN JUSTICE

Plaintiff has sued the Defendant in the Small Claims Part of this Court seeking damages in the amount of $1, 142.44 for a claim against the Defendant for nuisance/negligence in constructing a storm water system and ignoring a Stop Work Order concerning the same on new construction located at a property adjacent to Plaintiff's residence on or about November 12, 2021.

In this matter, the Plaintiff testified on his own behalf and called no witnesses. Plaintiff was cross-examined by the Defendant and made a statement in rebuttal of the same. Plaintiff offered various documents in evidence with the consent of the Defendant as follows:

• Exhibit "1": A letter to the Defendant from Scott Reese Stormwater Management Technician of the Town of Clifton Park dated August 4, 2021. On the opposite side of that document was a "Stop Work" notice dated September 21, 2021 addressed to the Defendant
• Exhibit "2A-E": Various photographs of the Plaintiff's property and automobile showing water flow across his property and onto the street on Easton Drive in Clifton Park, New York
• Exhibit "3": An e-mail chain to Mr Massaroni from Mr. Scott Reese dated November 12, 2021 concerning illicit discharge of sediment laden runoff;
• Exhibit "4" An e-mail dated November 12, 2021 from the Plaintiff to Mr. Scott Reese of the Town of Clifton Park;
• Exhibit "5" A letter dated November 18, 2021 to the Defendant concerning a Notice of Violation of the property of 132/134 Lapp Road, Town of Clifton Park, which includes eight photographs; and
• Exhibit "6" A bill and estimate concerning damage to Plaintiff's car.

The Defendant testified on his own behalf and called no other witnesses. Defendant was cross-examined by the Plaintiff and made a statement in rebuttal to the same. Defendant offered various documents in evidence with the consent of the Defendant as follows:

• Exhibit "A" E-mail from the Plaintiff to the Planning Board of Clifton Park dated January 11, 2021;
• Exhibit "B" Excerpts of Planning Board Minutes of the Town of Clifton Park which are undated but make reference to events that occurred in October, 2020;
• Exhibit "C" A photograph dated November 12, 2021 of 2B Eastern Drive, Clifton Park, New York;
• Exhibit "D" A photograph dated November 13, 2021;
• Exhibit "E" A photograph dated November 13, 2021;
• Exhibit "F" Identified as a weather chart and was not accepted into evidence.
• Exhibit "G" An appearance ticket addressed to Mr. Massaroni to appear in Clifton Park Town Court on December 9, 2021 concerning violation of Town Ordinance No.86-7, paragraph "c" - to prevent an increase in turbidity and surface waters; and
• Exhibit "H" Site Plan for the property of 132/134 Lapp Road dated September 5, 2020.

Plaintiff's testimony and claim for damages essentially sounds in negligence and nuisance for allowing water to run off of the property the Defendant was developing at 132/134 Lapp Road in the Town of Clifton Park. Generally speaking, a private nuisance claim can be sustained where the Defendant's intentional conduct caused the runoff to flood Plaintiff's property. A negligence claim can be sustained where it is found that the Defendant knew or should have known his action or failure to act created the water flow problem that caused Plaintiff's damage. Wfe Ventures v Gbd Lake Placid, 197 A.D.3d 824, 832 [3d dept. 2021]. Plaintiff claims that Defendant failed to properly install storm water system that would prevent the storm water running from the Lapp Road property to the Plaintiff's property and into the street on Easton Drive. The Plaintiff claims the Defendant ignored the Town Officials' orders to remedy the storm water system installed by the Defendant.

Plaintiff claims on the day in question, November 12, 2021, Plaintiff's car was parked on the street on Easton Drive opposite his driveway. During a rainfall, water runoff came from the property under development at 132/134 Lapp Road, across Plaintiff's property at 2B Easton Drive and onto the street flooding Easton Drive. The Plaintiff argues that the Defendant was cited by the Town of Clifton Park's Stormwater Management Technician, Scott Reese, prior to and after the incident in question. Plaintiff claims that Exhibit "1" ordered Mr. Massaroni to stop work...

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