Tortorici v. Massaroni
| Decision Date | 17 February 2022 |
| Docket Number | XXXXX |
| Citation | 74 Misc.3d 843,164 N.Y.S.3d 407 |
| Parties | Richard W. TORTORICI, III, Plaintiff, v. Anthony MASSARONI, Defendant. |
| Court | New York County Court |
Richard W. Tortorici, III, plaintiff pro se.
Anthony Massaroni, defendant pro se.
Peter J. Scagnelli, J. 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:
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:
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, 153 N.Y.S.3d 214 [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 on 132/134 Lapp Road as the grading along the rear portion of the foundation wall was not in conformance with the approved site plans (Plaintiff's exhibit "1") and Mr. Reese advised the Defendant:
"The concern with the additional fill is the impact it may have with the approved stormwater management area - shallow grassy depression #6/ Modified site plans will need to be submitted to the Planning Department that show the original stormwater design will still work within the existing site parameters ... the Stop Work Order will be modified to a Stop Work Order for just site work in the back portion of 134 Lapp Road, once the recent fill along the back foundation is removed, the silt fence is installed, and a sediment trap along the back is installed."
Plaintiff argues that the Defendant was ordered to stop work by way of a notice left for the Defendant on September 21, 2021 that directed the Defendant to stop all work until sediment traps are installed and new site plans are received and approved.
Plaintiff also points to the e-mail from Mr. Reese to the Defendant stating on the day in question (November 12, 2021), Plaintiff's exhibit "3", that Mr. Reese witnessed an illicit discharge of sediment laden runoff leaving the construction site of 132/134 Lapp Road across the Plaintiff's property and into the Town of Clifton Park's closed drainage system. (Exhibit "3" in evidence.)
Plaintiff also submitted exhibit "5", (in evidence), a letter from Steven Myers, Director of Building and Zoning Stormwater Management Officer of the Town of Clifton Park to the Defendant dated November 18, 2021. In this letter, Mr. Meyers tells the Defendant that sediment laden storm water runoff was observed on November 12, 2021 entering the Town owned closed drainage system on Easton Drive. Mr. Myers describes this as a "illicit discharge violation". Mr. Myers also notes that per the August 4, 2021 Stop Work Order, Defendant was to install a sediment trap on the back of 134 Lapp Road. Per Mr. Myers, (exhibit "5"), the sediment trap had not been installed as of November 18, 2021.
Plaintiff submitted various photographs (exhibits "2A-2E") demonstrating water flowing across his property from the construction site into the street of Easton Drive in Clifton Park, noting flooding in the vicinity. There is a photograph of a white vehicle in the road. (Plaintiff's exhibits "2A" and "2E".) The photographs also demonstrate muddy water flowing across Plaintiff's property into the street on Easton Drive. (Plaintiff's exhibits "2D" and "2E".) Plaintiff avers that as the Defendant did not follow the direction of the officials of the Town of Clifton Park by failing to construct a silt fence and a sediment trap, the street flooded and damaged his car.
In support of his claim for damages, Plaintiff submitted exhibit "6", an invoice from Capitaland GMC-Subaru detailing a cost of $118.00 plus tax for a total of $127.44. This exhibit indicates there was "no audio sound or speedometer function". The invoice notes that the amplifier under the seat has water damage and should be replaced. The estimate for replacement was $900.00 plus tax.
The Defendant testified on his own behalf and believes that the Plaintiff failed to state a cause of action. Specifically, Defendant claims that there is no causal relationship between the action taken by the Stormwater Management Technician in the Town of Clifton Park against him and the subsequent flooding of the street and the Plaintiff's car. Defendant claims that the stormwater that ran across his property ran across his property prior to the date in question. Defendant claims he was cited for the sediment draining off of the construction site onto the Plaintiff's property and not the stormwater flowing across Plaintiff's property. Defendant also claims that the flooding was caused by the rainfall and as rain is a "common enemy" he bears no responsibility for the resultant damage to Plaintiff's car.
The seminal case on point is Kossoff v....
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