Sarah E. Hansen, partner in the Buffalo, New York, office of Burden, Hafner & Hansen, LLC, successfully obtained dismissal in January 2018, of a lawsuit brought against a municipality, where the Plaintiff claimed that the municipality was negligent in constructing or maintaining a bridge over a creek so as to direct water onto his property and/or failing to maintain the creek bed to prevent erosion on his property. Plaintiff also made claims for nuisance and deprivation of property under the United States and New York Constitutions. Ms. Hansen and her partner, Donna Burden, defended a town, which was the only named defendant in the lawsuit brought in the Supreme Court, Allegany County.
The Plaintiff alleged that during the 1970s, the Defendant had constructed a bridge upstream from his property, located in Allegany County, New York, which changed the direction of water and directed the streambed towards his property and in the direction of his home. He further claimed that the Defendant had maintained the creek bed on his property for a period of time thereafter to prevent erosion of the creek bed, but at some time, the Defendant had ceased performing remedial work in the creek bed, and another governmental entity (not named in the lawsuit) began performing the work instead.
According to the Plaintiff, in or about 2005, he built a two-story freestanding garage on his property. He obtained a building permit from the Defendant, but this expired, he did not renew it, and he was never issued a certificate of occupancy for the garage. Plaintiff claimed that after the garage was constructed, he observed the creek encroaching further onto his property, in the direction of the garage, encroaching on roughly an acre of his land.
Plaintiff alleged that when the erosion in the creek became an issue with respect to his detached garage, he reached out the Defendant’s officials and they agreed to assist him with the erosion problem. He said that this did not happen, and on April 12, 2013, his garage and all of its contents fell into the creek and was completely destroyed.
Burden, Hafner & Hansen, LLC was retained initially to handle this claim in conjunction with a General Municipal Law §50-h hearing of the Plaintiff and subsequently in the litigation when the case was sued in Allegany County. General Municipal Law §50-h allows certain public entities to take a hearing of a claimant before any lawsuit is filed to investigate the claim being made.
A thorough and comprehensive 50-h hearing formed the basis for a strong defense. Plaintiff ultimately admitted in questioning that the municipal officials had told him that they could only help him if he obtained the necessary permits and materials needed to perform the remediation, which he did not obtain. Detailed investigation into the bridge construction claim uncovered evidence confirming that the bridge in question was not constructed by the Defendant, but by another municipality who was not named in the lawsuit.
After Plaintiff, who was initially pro seand subsequently retained counsel, continued to delay in discovery in his case, the Defendant moved for summary judgment, prior to any depositions being conducted, based largely on the testimony taken at the 50-h hearing. Ultimately, the Allegany County Supreme Court, Judge Thomas Brown, denied the summary judgment motion, and an appeal was filed. Of note, during the pendency of the appeal, and just prior to a Decision being issued on the appeal, Judge Brown dismissed the case on procedural grounds, based upon the Plaintiff’s failure to respond to Defendant’s discovery demands in full.
The case was dismissed on the merits, however, on an appeal taken to the Fourth Department, Appellate Division, which reversed Judge Brown’s decision on Defendant’s Summary Judgment Motion and dismissed the plaintiff’s Complaint in total.
The Fourth Department agreed that the lower court had erred in dismissing claims pertaining to the construction or alteration of the bridge, as Defendant had shown proof that it did not construct the bridge. Plaintiff failed to rebut that showing.
As to the claim that the Defendant was negligent in failing to act to prevent or abate damage on Plaintiff’s property caused by the erosion, the Fourth Department found that there was no duty for the Defendant to provide assistance with erosion on Plaintiff’s personal property. The Fourth Department also held that any gratuitous offer to assist Plaintiff was a conditional offer, which was not triggered as Plaintiff had not obtained the necessary permits.