Tuesday, February 5, 2013

This Week At The Court Of Appeals

Marinaccio v. Town of Clarence

Principally at issue in this action for trespass and private nuisance is whether punitive damages were appropriate when the development of a new residential subdivision intentionally resulted in water diverting to the plaintiff's 42-acre property. The diverted water increased the size of wetlands on the plaintiff’s property from about 6 acres to over 30 acres. The jury found that the Town and the subdivision developer were liable for compensatory damages, but the jury also awarded $250,000 in punitive damages against the subdivision developer. 

The Fourth Department affirmed the punitive damages award in a 3-2 decision, citing evidence that both the Town and developer were aware the next phase in construction would cause more water to divert onto plaintiff’s property and did nothing to address the situation. The Town even promised the developer to get an easement from the plaintiff, but did not even attempt to obtain it. As a result, the Fourth Department held that a jury could find that the defendant “intentionally disregarded plaintiff’s property rights in a manner that was either ‘wanton, willful or reckless.’” 

The dissent maintained that despite knowingly diverting water onto plaintiff’s property, the developer did not do so with malicious intent. The dissent noted that the developer retained an engineering firm to prepare a drainage plan concerning the water flow, the Town’s engineering department approved the plan, the development satisfied the Town’s requirements, and the developer was unaware that the Town failed to obtain the promised easement from the plaintiff. Given that, the dissent felt that this was not the exceptional tort case where punitive damages would be warranted. 

Oral argument will be this Tuesday, February 5, 2013. 

Hecker v. State of New York

In this Labor Law § 241(6) action, the plaintiff claimed he was injured in a slip-and-fall while shoveling snow on a lift bridge. Plaintiff alleged a violation of 12 NYCRR 23-1.7(d) of the Industrial Code, which states, “Ice, snow, [and] water . . . which may cause slippery footing shall be removed, sanded or covered to provide safe footing.” The Court of Claims had granted the defendant summary judgment, holding that the plaintiff could not sue for the snow’s lack of removal since removing the snow was an integral part of his job. 

The Fourth Department uniformly rejected the Court of Claims’ view, but nevertheless affirmed on other grounds in a 3-2 decision. The Fourth Department concluded that the Code did not apply as the plaintiff was not using the area that he fell in as a “floor, passageway or walkway” at the time. At issue, however, both parties failed to argue the applicability of the regulation. Nevertheless, the majority felt comfortable making this determination, noting that the issue was raised in the plaintiff’s bill of particulars and cross motion, which alleged that the statute applied, and both came up on appeal from the entire order. 

By contrast, the dissent would have modified to deny the defendant summary judgment on the section 241(6) claim. The dissent not only believed that it would be unfair to decide the appeal on a rationale that neither party advanced, but also believed the regulation did in fact apply. The dissent reasoned that the plaintiff was clearing snow off a sidewalk that was the only means of access to the underground work site and, for this reason, was a ‘passageway or walkway’ within the meaning of the Code. 

Oral argument will be this Thursday, February 7, 2013.

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