        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1120
CA 10-00292
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND LINDLEY, JJ.


PAUL MARINACCIO, SR., PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

TOWN OF CLARENCE, DEFENDANT,
AND KIEFFER ENTERPRISES, INC.,
DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


GOLDBERG SEGALLA LLP, BUFFALO, PHILLIPS LYTLE LLP (MICHAEL B. POWERS
OF COUNSEL), FOR DEFENDANT-APPELLANT.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOSEPH J. MANNA OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Frederick J. Marshall, J.), entered November 24, 2009. The judgment
awarded plaintiff money damages against defendant Kieffer Enterprises,
Inc. upon a jury verdict.

     It is hereby ORDERED that the judgment so appealed from is
affirmed without costs.

     Memorandum: Plaintiff commenced this action asserting causes of
action for, inter alia, trespass and private nuisance and seeking
damages for flooding on his property allegedly caused by the
intentional flow of water onto his property. The water originated
from a subdivision (hereafter, subdivision) developed by defendant
Kieffer Enterprises, Inc. (KEI) on land adjacent to plaintiff’s
property located in defendant Town of Clarence (Town). Following a
trial, the jury returned a verdict in favor of plaintiff on liability.
The jury awarded plaintiff a total of $1,642,000 in compensatory
damages, as well as punitive damages of $250,000 against KEI. In
appeal No. 1, KEI appeals, as limited by its main brief, from that
part of the judgment awarding plaintiff punitive damages against it.
In appeal No. 2, KEI appeals from the order settling the record in
appeal No. 1.

     Addressing first the order in appeal No. 2, we agree with KEI
that Supreme Court erred by excluding from the record the opposing
papers and reply papers with respect to plaintiff’s motion in limine
seeking to preclude the testimony of an appraisal expert for the Town,
as well as the order determining that motion (see CPLR 5526; 22 NYCRR
1000.4 [a] [2]). We thus modify the order in appeal No. 2
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                                                         CA 10-00292

accordingly. Contrary to KEI’s contention, however, we conclude under
the circumstances of this case that the court properly excluded
certain superseded pleadings from the record in appeal No. 1 (see
Aikens Constr. of Rome v Simons, 284 AD2d 946, 947; Millard v
Delaware, Lackawanna & W. R.R. Co., 204 App Div 80, 82).

     Turning back to appeal No. 1, we view the points in KEI’s main
brief that the court “erred in refusing to dismiss the punitive
damages claim where no evidence was offered to prove that [KEI acted]
intentionally, maliciously, or with near criminal intent” and that
“the evidence offered by plaintiff [did not meet] the ‘strict’
standard of proving that [KEI] acted maliciously, willfully and with
near criminal intent” as constituting a contention that the award of
punitive damages is not supported by legally sufficient evidence.
“ ‘[T]o recover punitive damages for trespass on real property, [a
plaintiff has] the burden of proving that the trespasser acted with
actual malice involving an intentional wrongdoing, or that such
conduct amounted to a wanton, willful or reckless disregard of
plaintiff[’s] rights’ ” (Western N.Y. Land Conservancy, Inc. v Cullen,
66 AD3d 1461, 1463, appeal dismissed 13 NY3d 904, lv denied 14 NY3d
705, rearg denied 15 NY3d 746; see West v Hogan, 88 AD3d 1247, 1249-
1250). To establish its entitlement to relief on its legal
insufficiency contention, KEI “had to [demonstrate] . . . ‘that there
[was] simply no valid line of reasoning and permissible inferences
which could possibly lead rational [persons] to the conclusion reached
by the jury on the basis of the evidence presented at trial’ ”
(Winiarski v Harris [appeal No. 2], 78 AD3d 1556, 1557, quoting Cohen
v Hallmark Cards, 45 NY2d 493, 499).

     Here, there is a valid line of reasoning supporting the jury’s
conclusion that KEI’s conduct was sufficiently egregious to warrant an
award of punitive damages. The evidence presented at trial
establishes that, in conjunction with the approval process for the
third phase of the subdivision (hereafter, Phase III), KEI’s sole
owner, Bernard G. Kieffer (Kieffer), retained an engineering firm to
prepare plans for that part of the subdivision. Those plans included
drainage calculations, which were intended to estimate the amount of
water that would flow from the subdivision’s roads to storm sewers,
and from there to a mitigation pond and into a shallow furrow that
traversed plaintiff’s property.

     Prior to the development of Phase III, however, there were
drainage problems at the subdivision. By June 9, 2000, the Town
became cognizant of those drainage issues, and recognized that its
ability to extend and maintain ditches to a road that formed the
northern boundary of plaintiff’s property was essential to resolving
those problems. Moreover, the Town and Kieffer knew that, as a result
of the additional construction in the subdivision, “there [would] be
more water dumping onto adjoining properties to the north and west,”
i.e., in the area of plaintiff’s property, and the Town noted that it
would “contact [plaintiff] regarding an easement along his west
property line.” KEI also hired a contractor to clean the furrow both
by backhoe and by hand as a condition of proceeding with Phase III.
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                                                         CA 10-00292

     The parties do not dispute that the Town and Kieffer did not
obtain plaintiff’s permission to allow water to flow onto his
property, and Phase III was approved, subject to several conditions
designed to facilitate drainage in the area, on June 21, 2000. During
Phase III construction, KEI built a pond next to plaintiff’s property,
which was fed by storm sewers and drained by two 12-inch pipes that,
according to Kieffer, were intended to release water into the furrow
on plaintiff’s property. Plaintiff testified at trial that the
outflow pipes were installed approximately one foot inside his
property line. According to the trial testimony of plaintiff’s expert
engineer, KEI routed more water from Phase III to plaintiff’s property
than was called for by its drainage plans.

     After the construction of Phase III, the nature of plaintiff’s
property changed. Plaintiff’s wetlands consultant testified at trial
that he estimated that there were only six acres of wetland on
plaintiff’s property in 2001, and that the wetland subsequently
expanded to the point that plaintiff’s property contained 19.5 acres
of wetland in 2006; 24.94 acres of wetland in 2008; and 30.23 acres of
wetland by 2009. Moreover, plaintiff’s wetlands consultant observed a
berm on part of plaintiff’s property in 2006, which plaintiff had
discovered in 2000 or 2001 and characterized as about 500 or 600 feet
long. Plaintiff’s wetlands consultant believed that the berm was the
result of “ditch maintenance” several years earlier, at which point
spoils from the furrow were placed on the east side of the furrow,
i.e., on the side of the furrow opposite the subdivision. He
concluded that migrating water on plaintiff’s property was blocked by
the berm, and that the growth of the wetland on plaintiff’s property
was due in part to the berm and in part to the presence of more water
on the site. We conclude that the foregoing evidence is legally
sufficient to allow the jury to conclude that KEI knowingly and
intentionally disregarded plaintiff’s property rights in a manner that
was either “ ‘wanton, willful or reckless’ ” (Cullen, 66 AD3d at 1463;
see Vacca v Valerino, 16 AD3d 1159, 1160; Fareway Hgts. v Hillock, 300
AD2d 1023, 1025; see generally Winiarski, 78 AD3d at 1557). For the
same reasons, we conclude that the court properly denied KEI’s motion
to dismiss the punitive damages claim at trial (see generally Golonka
v Plaza at Latham, 270 AD2d 667, 670-671).

     Likewise, we reject KEI’s contention that the court erred in
concluding that KEI’s failure to plead a drainage easement as an
affirmative defense constituted a waiver thereof (see Cronk v Tait,
279 AD2d 857, 859; see generally Griffith Energy, Inc. v Evans, 85
AD3d 1564, 1566). The easement in question permitted the Town to
maintain a drainage ditch on plaintiff’s property “for the disposal
and dispersal of surface waters from the adjoining premises,” but was
considered for the first time on the first day of trial. Moreover,
based on a land survey prepared by the Town in 1994 upon which
plaintiff relied in purchasing his property in 1995, the easement was
shown to be on the east side of plaintiff’s property, i.e., the
opposite side of the property where KEI drained water onto that land,
and thus the easement is irrelevant to this case. Therefore, even
assuming, arguendo, that KEI’s further contentions with respect to the
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                                                         CA 10-00292

easement are properly before us (see Murdoch v Niagara Falls Bridge
Commn., 81 AD3d 1456, 1457, lv denied 17 NY3d 702; see generally CPLR
5501 [a] [3]), we also conclude that those contentions lack merit.

     KEI failed to preserve for our review its additional challenge to
the court’s jury instruction to disregard evidence that KEI acted
reasonably in reliance on engineers and good engineering practices
(see CPLR 4110-b; Howlett Farms, Inc. v Fessner, 78 AD3d 1681, 1682,
lv denied 17 NY3d 710), as well as its challenge to the verdict sheet
(see MacKillop v City of Syracuse, 48 AD3d 1197, 1198). We decline
KEI’s request to review those challenges and other unpreserved issues
that it raises on appeal in seeking a new trial. First, that request
is raised for the first time in KEI’s reply brief and thus is not
properly before us (see Pieri v B&B Welch Assoc., 74 AD3d 1727, 1730).
Second, “[a] court should grant a new trial in the interest of justice
‘only if there is evidence that substantial justice has not been done
. . . as would occur, for example, where the trial court erred in
ruling on the admissibility of evidence, there is newly discovered
evidence, or there has been misconduct on the part of the attorneys or
jurors’ ” (Butler v County of Chautauqua, 277 AD2d 964, 964), and none
of those circumstances is present here.

     Finally, we have considered KEI’s remaining contentions, which
include challenges to the admission of testimony as to the value of
plaintiff’s property, to that part of the jury charge with respect to
causation, to the alleged inconsistency of the verdict, and to the
preclusion of the testimony of the Town’s damages expert. To the
extent that those challenges are properly before us (see CPLR 5501 [a]
[3]; Krieger v McDonald’s Rest. of N.Y., Inc., 79 AD3d 1827, 1828, lv
dismissed 17 NY3d 734; Howlett Farms, Inc., 78 AD3d at 1682-1683;
Ciesinski v Town of Aurora, 202 AD2d 984, 985), we conclude that they
are without merit. We further note only that none of KEI’s remaining
contentions is relevant to the ultimate issue before us on appeal,
i.e., the propriety of the punitive damages award (cf. Nickerson v Te
Winkle, 161 AD2d 1123, 1123-1124).

     All concur except SCUDDER, P.J., and PERADOTTO, J., who dissent in
part and vote to modify in accordance with the following Memorandum:
We respectfully dissent in part and would modify the judgment in
appeal No. 1 by vacating the award of punitive damages. In our view,
this is not an “exceptional” case where punitive damages are warranted
(Ross v Louise Wise Servs., Inc., 8 NY3d 478, 489; see Smith v
Fitzsimmons, 180 AD2d 177, 181).

     The facts are ably set forth by the majority, and we shall not
repeat them here. We note at the outset that there is no question
that plaintiff established his cause of action for trespass by
demonstrating that defendant Kieffer Enterprises, Inc. (KEI)
“intentionally [discharged water] onto the land belonging to the
plaintiff[] without justification or permission” (Carlson v Zimmerman,
63 AD3d 772, 773; see generally PJI 3:8). However, “[s]omething more
than the mere commission of a tort is always required for punitive
damages. There must be circumstances of aggravation or outrage, such
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as spite or malice, or a fraudulent or evil motive on the part of the
defendant[s], or such a conscious and deliberate disregard of the
interests of others that the conduct may be called [willful] or
wanton” (Prozeralik v Capital Cities Communications, 82 NY2d 466, 479
[internal quotation marks omitted]). Specifically, “[p]unitive
damages are permitted [only] when the defendant[s’] wrongdoing is not
simply intentional but evince[s] a high degree of moral turpitude and
demonstrate[s] such wanton dishonesty as to imply a criminal
indifference to civil obligations . . . [P]unitive damages may be
sought when the wrongdoing was deliberate and has the character of
outrage frequently associated with crime” (Ross, 8 NY3d at 489
[internal quotation marks omitted]).

     Although there is no question that KEI discharged water into the
furrow and that it did so with knowledge and intent, we conclude that
there is insufficient evidence in this record that KEI was motivated
by maliciousness or vindictiveness or that KEI engaged in such
“ ‘outrageous or oppressive intentional misconduct’ ” to warrant a
punitive damages award (id.; cf. West v Hogan, 88 AD3d 1247, 1249-
1250; Doin v Champlain Bluffs Dev. Corp., 68 AD3d 1605, 1613-1614, lv
dismissed 14 NY3d 832; Western N.Y. Land Conservancy, Inc. v Cullen,
66 AD3d 1461, 1463, appeal dismissed 13 NY3d 904, lv denied 14 NY3d
705, rearg denied 15 NY3d 746; Ligo v Gerould, 244 AD2d 852, 853).
The record reflects that part of the furrow was located on land
belonging to KEI, while other parts of the furrow traversed
plaintiff’s property. At least some of the water from the undeveloped
property that ultimately became the subdivision naturally flowed into
that furrow. Prior to developing the third phase of the project
(hereafter, Phase III), KEI’s sole owner, Bernard G. Kieffer, retained
an engineering firm to prepare, inter alia, a drainage plan. The plan
included drainage calculations, which were intended to estimate the
amount of water that would flow from the subdivision’s roads to storm
sewers, and from there to a retention pond and into the furrow.
Kieffer relied on the expertise of his engineers to prepare an
appropriate drainage plan, and that plan was submitted to, and
approved by, the Engineering Department of defendant Town of Clarence
(Town) and the Town Board. Indeed, the record reflects that KEI
developed Phase III in accordance with all of the Town’s requirements.
With respect to the easement, the Town advised Kieffer that it would
obtain an easement from plaintiff for the increased water flow onto
his property. While Kieffer may have been negligent in failing to
ensure that the Town followed through with its expressed intention, we
cannot conclude that such failing warrants an award of punitive
damages. At trial, Kieffer testified that it was not his intent to
interfere with the use of plaintiff’s property, and our review of the
record discloses no evidence to the contrary.

     In sum, “punitive damages are awarded not for the unintended
result of an intentional act, but for the conscious disregard of the
rights of others or for conduct so reckless as to amount to such
disregard” (Hartford Acc. & Indemn. Co. v Village of Hempstead, 48
NY2d 218, 227-228). We conclude that punitive damages are not
justified on this record because the harm in this case—the flooding of
plaintiff’s property—was not intended by KEI (see id.; cf. West, 88
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                                                         CA 10-00292

AD3d at 1249-1250; Fareway Hgts. v Hillock, 300 AD2d 1023, 1025).
Rather, the flooding was an unintended result of KEI’s intentional
conduct, i.e., discharging water into the furrow and, thus, does not
warrant an award of punitive damages (see Hartford Acc. & Indemn. Co.,
48 NY2d at 227-228).




Entered:   December 30, 2011                   Frances E. Cafarell
                                               Clerk of the Court
