ESTATE OF WHITEHEAD v. STATE (2019)

Around 1939 when Franklin D. Roosevelt East River Drive (the “FDR Drive”) was being constructed below the cliffs of the Sutton Place neighborhood along the East River, Lillie Havemeyer, the then-owner of 16 Sutton Square, and Walter Binger, then-Commissioner of Borough Works for the City of New York, struck a deal that would fundamentally change the environment surrounding Sutton Square ¹ . Havemeyer permitted the City to build the FDR Drive beneath her home and, in exchange, the City agreed to build her a new house at its own expense after demolishing her old house ² . Three quarters of Havemeyer's new house sat atop the roof deck of the FDR Drive's structural steel and concrete frame. Whether she knew it or not, Havemeyer tied together the fate of 16 Sutton Square, its future owners, and their neighbors to the State's business of operating and maintaining the FDR Drive. This case deals with the consequences of Havemeyer's agreement that haunts the present-day owners of 16 Sutton Square and their next-door neighbors at 14 Sutton Square.

In early 2000, when the State embarked on its reconstruction effort to address the FDR Drive's persistent safety and inefficiency issues, the resulting construction caused vibrations that traveled up the structure to the two Sutton Square properties. Claimants, who are the present-day owners ³ of 14 Sutton Square and 16 Sutton Square, allege that the State negligently designed and renovated the FDR Drive and negligently managed the construction project. Because of this alleged negligence, John Whitehead's Estate alleges that 16 Sutton Square was damaged by excessive vibrations during the construction period and again thereafter to the present once the FDR Drive was reopened to traffic. Mark DiStefano's estate does not allege any property damage to 14 Sutton Square. However, both claimants allege that the reconstruction project caused annoyance and discomfort throughout construction and thereafter to the present day. For its part, defendant denies that the vibrations were excessive and denies that it caused any property damage.

In addition to this factual dispute, the two central legal disputes in this case are: (1) what is the appropriate duty of care with respect to vibration limits; and (2) whether the State breached that duty. The Court finds that the State's vibration limits as adopted by the State from the prevailing national standard and incorporated into the State's Department of Transportation (“DOT”) Design Manual were appropriate. Additionally, the Court finds that the State discharged their duty to claimants pursuant to the adopted standard and even to a more conservative standard advocated by the claimants. For this reason and others, the Court dismisses both claims and all causes of actions stated therein.

A seven-day joint trial on all issues was held from September 11, 2017 to September 15, 2017 and September 18 and 19, 2017. The Court heard testimony from a litany of eyewitnesses and expert witnesses. Thereafter, the Court conducted an on-site inspection of both properties on November 13, 2017. At the Court's request, the parties submitted supplemental memoranda at the end of February 2018 briefing the Court on the State's duty to claimants. In deciding the merits of this case, the Court reviewed the memoranda along with evidence admitted at trial.

 FACTS

 The FDR Drive

The FDR Drive is a nine-and-a-half-mile highway that runs along the eastern edge of Manhattan and connects the Battery Park underpass in the south to the Harlem River Drive in the north. It was originally constructed between 1934 and 1955 and the section below the Sutton Square properties was constructed around 1939. Owing to its unique design, the FDR Drive has been described as a thrilling stretch of roadway because of its meandering twists and turns ⁴ . As this case amply demonstrates, the highway is an architectural novelty that has been admired for its complexity, but also derided for its intrusiveness. Unlike most highways, it morphs from a multi-lane road with northbound and southbound traffic lanes running parallel to each other, then turns into a trilevel viaduct with northbound and southbound lanes on top of the other. It ascends and dips along the open street and tunnels under buildings along the eastern bulkhead of Manhattan.

When the FDR Drive was being built, engineers faced a problem with the area's topography. Specifically, the coastline running between East 56th Street and East 58th Street had rocky cliffs that reached down to the shore. Engineers handled this issue by blasting portions of the cliffs, erecting a seawall, and then building a trilevel viaduct on top of the sea wall. The tunneling trilevel structure supports public parks, private gardens, apartment buildings, and the Sutton Square properties from its roof deck. Below the top level roof deck is a road for southbound traffic (located on the middle level of the viaduct) and below that is a road for northbound traffic (located at the bottom level of the viaduct).

 Sutton Square Properties

The two Sutton Square properties involved in this case are neighboring townhouses at 16 Sutton Square and 14 Sutton Square. They are located on an extension of East 58th Street (named Sutton Square), which is bordered to the south by East 57th Street, by Sutton Place to the west, and by the East River to the east. Of the two properties, 16 Sutton Square is closest to the East River.

 16 Sutton Square

16 Sutton Square is a four-story brick townhouse with sweeping views of the East River. The property is a quiet, posh retreat from the bustling city streets that many New Yorkers call home. The property is four thousand, five hundred square feet and has five bedrooms, four and a half bathrooms, two full kitchens, a library, a bar, and an aboveground basement equipped with maids' chambers. An elevator connects the upstairs floors to the basement and bay windows ensconce a spiral staircase that runs from the main floor to the top floor. The property also has a private backyard and access to a private garden that is shared with residents of eleven other townhouses located in Sutton Square.

Long after the Havemeyers owned 16 Sutton Square, it had been occupied by such luminaries as Greek shipping magnate Aristotle Onassis and, more recently, John C. Whitehead (“JW”) and his spouse Cynthia Whitehead, a real estate broker. JW was a World War II veteran who worked as President Reagan's Deputy Secretary of State and rose to the top of the financial world as Chairman of Goldman Sachs. He also held high level positions at the World Trade Center Foundation, the Asia Society, and numerous other civic organizations. JW purchased the property in 1989 shortly after it was totally renovated around 1985.

 14 Sutton Square

14 Sutton Square is a palatial five-story, brick townhouse. The building measures nearly five thousand square feet of livable space including, six bedrooms, seven bathrooms, a library, a basement, and a private patio. Like 16 Sutton Square next door, the building is equipped with an elevator that connects the upstairs floors to the basement and a circular staircase that runs from the main floor to the top floor.

As with its neighbors, 14 Sutton Square was home to some of New York's most famous elites, including members of the Vanderbilt and Morgan families. The property is now co-owned by Margaret DiStefano and her spouse, the late Mark DiStefano (hereinafter, the “DiStefanos”), a pioneer in the data center industry and the former Chairman of Nova Corp. The building was originally built in 1899, but the DiStefanos completely rebuilt it two years after they purchased it in 1999.

 FDR Drive Reconstruction Project

In early 2000, DOT inspectors determined that the then-sixty-year old, trilevel viaduct running between East 54th Street and East 63rd Street was in poor structural condition and needed to be replaced. Steel bars that were imbedded within concrete slabs of the middle tier were exposed. The concrete slabs would crack and fall off the structure and endanger the highway's users. Eventually, the steel bars themselves began hanging off the structure onto the active roadway below. Additionally, the asphalt overlay (i.e., the roadway surface that vehicles drove on) at the surface of the concrete slabs would crack and cause potholes. These problems weakened the overall structure to such a degree that the vehicle load capacity decreased by seventy-five percent. This section of the FDR Drive was heavily trafficked, with an average of 150,000 vehicles driving on it daily. Thus, rehabilitation was crucial to insuring the safety of countless New Yorkers who use it as a main thoroughfare. Rehabilitation was also critical to residents of the Sutton Place neighborhood because they relied on the stability of the trilevel viaduct to support their homes.

Importantly, DOT's engineers believed that the original design of the trilevel viaduct was so obsolete that it could not be restored in a way that met modern day construction standards. Instead, in the late 1990s the DOT redesigned and reconstructed the entire structure to meet modern design standards, including standards for handling earthquakes.

In December 2002, DOT and its contractors began work on the FDR Drive Reconstruction Project (the “Project”) and completed the Project four years and eight months later in August 2007. The Project, which was completed on time, was designed by Daniel Frankfurt, PC (“DF”) in consultation with DOT's structural engineers and costed approximately $ 140,000,000. The Project involved, inter alia, demolishing and rebuilding the southbound roadway (i.e., the middle tier) of the FDR Drive running between East 56th Street and East 58th Street. The State also resurfaced the southbound roadway, retrofitted the structure to handle seismic events (i.e., earthquakes), added a new drainage system, and upgraded the roadway geometry to improve sight distance for drivers. See Cl. Ex. 5.

DOT sought to shorten the Project timeline, minimize traffic disruptions, and minimize noise and vibrations to the above residents. To accomplish this, the State constructed a temporary outbound detour roadway (“ODR”), which was a bridge built on the East River, as part of a multi-phase project plan. Id. The ODR was built so that northbound traffic could be seamlessly redirected onto the temporary road while the southbound tier was demolished and reconstructed. To support the ODR, the State installed steel caissons into the river bed.

After the ODR was built and northbound traffic was rerouted through the ODR, the State demolished the southbound deck. Id. It then excavated a portion of the retaining wall and installed a new roadway deck slab paved with asphalt to provide a smoother driving surface. The new deck slab complied with current day standards set by the State's Design Manual and recommended by the American Association of State Highway and Transportation Officials (“AASHTO”). Specifically, the old twenty-seven-inch thick southbound deck was replaced with a nine-and-a-half-inch thick deck. Thereafter, the State rehabilitated the bottom level northbound road. Lastly, the State removed the ODR once the main renovation work was completed.

 Measuring Vibrations

Disruptions caused by noise, light, and vibrations are a ubiquitous feature of city life. Traffic and construction activities, in particular, commonly cause some amount of disruptions to the surrounding properties. With respect to vibrations, the magnitude of vibrations largely depends on the type of activity and the amount of energy the activity produces. Vibration magnitudes are usually described as peak particle velocity (“PPV”), which gauges a structure's movement in response to energy from a vibration. Because it takes more time for humans to feel vibrations than it does for a structure to be impacted by vibrations, an average vibration amplitude described as the root mean square amplitude is typically used to assess human responses to vibrations. However, for simplicity sake, the Court will use PPV values as measured in inches per second (“ips”) when discussing vibration data.

 Complaints, Responses, and Data

The State's Project kicked off with construction of the ODR in December 2002. Claimants' witnesses' testimony is unclear as to when precisely they began noticing construction vibrations, but the record is full of evidence of their complaints.

 June-September 2003

A letter dated June 16, 2003 indicates that JW began complaining to DOT about property damage to 16 Sutton Square in June 2003. See Cl. Ex. 32. At that time, DOT was constructing the temporary ODR. See Cl. Ex. 5. JW complained that the tile floor of the foyer was cracking; the molding of the spiral staircase stringer was opening; and there was movement in the staircase exterior window wall, the base of a column in the library, door casings, windowsills and other areas. See Cl. Ex. 32.

In response to these complaints, DF hired Wang Engineering Services (“WES”) to monitor vibrations at the property. See Cl. Exs. 6 & 32. Additionally, the DOT's Engineer in Charge of the Project, along with the State's contractors, met with JW's general contractor John Cucci (“JC”) at the property to view the property damage that JW believed was caused by construction vibrations.

Around June 2003, WES installed a seismograph (i.e., vibration monitor) on the soil of the garden at the east of the property and collected data on a twenty-four hours a day basis. Soon thereafter, WES' staff installed several seismographs on the roof's parapet to study how vibrations impacted the building from the ground to the roof. See Cl. Exs. 6, 23, & 32. They also added tiltmeters on the roof at that time. In this situation, tiltmeters were used to track changes to the building's slope to gauge whether the building was at risk of structural damage. On July 25, 2003, WES' staff also installed “Scratch-A-Track” motion monitors to track thermal movement of cracks on the bricks of the eastern wall outside the property. See Cl. Ex. 7.

As of July 10, 2003, JW believed that construction of the ODR caused hairline cracks in the molding and the wall near the spiral staircase and cracks in the windowsill next to the staircase. Id., and see Cl. Ex. 6. Notably, seismograph data collected by WES around this time showed that vibration levels were much less than 0.01 ips. See Cl. Ex. 23.

A letter drafted by an engineer at JW's consultant Leslie E. Robertson Associates (“LERA”) dated September 24, 2003 indicates that LERA staff continuously monitored vibration data produced by WES' seismographs. See Def. Ex. A. For the three months leading to September 2003, the data showed that vibrations at 16 Sutton were less than 0.05 ips and did not pose any structural danger to the property. Id.

 August 2004

The next documented complaint about vibrations at 16 Sutton Square was nearly a year later in a memorandum drafted by LERA staff documenting vibrations observed on August 3 and August 4 of 2004. See Cl. Ex. 24. By this time, construction of the ODR had been completed, northbound traffic was rerouted to the ODR, and DOT's contractors were preparing to demolish the southbound, middle tier of the FDR Drive. See Cl. Exs. 5 and 33. Data gathered from WES' vibration monitors indicated that the highest magnitude of vibration on August 3, 2004 was slightly above 0.1 ips and slightly above 0.2 ips on August 4, 2004. See Cl. Ex. 24. LERA characterized the vibrations as “excessive.” Id. Photos taken by LERA's staff on August 3, 2004 show some water damage to the bay windows that run from the ground floor to the top floor of the property. See Cl. Ex. 9. Water damage at these windows is also visible in photos taken almost five months earlier by LERA staff on March 18, 2004. See Cl. Ex. 8. These photos also show cracks in the glass of some of the bay windows, cracks above door moldings, and cracks in the glass balusters of the spiral staircase. Id.

In response to complaints by JC, DOT issued a Stop Work Order. See Cl. Ex. 24. Representatives from DOT and its contractors then met with LERA staff and JC to inspect damage at the property. DOT agreed to have its contractors change their method of demolition work to decrease vibrations to the property. See Cl. Ex. 33.

 November 2004

In early November 2004, as DOT began its eighteen-month effort to demolish and replace the old southbound roadway, JW again complained of construction vibrations. At this time, DOT was removing old asphalt from the southbound roadway. See Cl. Ex. 34. A memorandum written by JC dated November 3, 2004 documents JW's complaint of vibrations two days earlier. Id. In response to the complaint, DOT staff met with JC and LERA staff on November 3, 2004 to review damage to 16 Sutton Square and vibration data. The data indicated that vibration levels went up to 0.38 ips on November 1, 2004 and 0.22 ips on November 2, 2004. Id. A memorandum prepared by LERA staff also documents the complaints, damage, and vibration data during this time. See Cl. Ex. 26. LERA's memorandum included vibration data showing that vibrations reached and possibly exceeded 0.5 ips on November 3, 2004. Id. The memoranda described cracks to the limestone portico at the main entrance, which was previously restored two years before; cracks to the marble tiles on the main floor; and cracks to moldings at doors and ceilings. See Cl. Exs. 26 and 34. Photos taken by LERA's staff on November 9, 2004 document this and other cosmetic damage. See Cl. Ex. 10.

A week after the meeting, DOT agreed to use hydro-demolition ⁵ equipment instead of jack hammers in order to reduce vibrations. See Cl. Ex. 34. DOT's representatives also agreed to establish geographical limits where disturbing demolition methods would be prohibited. See Cl. Ex. 26.

Less than a week after the November 3, 2004 meeting, JW himself called a meeting on November 9, 2004 with JC and representatives from LERA and DOT. See Cl. Ex. 25. JW and his representative again complained about vibrations that they believed were excessive. They also complained about problems communicating their complaints to DOT. Id. Additionally, JW's representatives demanded that DOT alter its ad-hoc approach to changing construction methods and, alternatively, evaluate construction methods and their potential impact on JW's property beforehand. Id. JW's representatives also demanded that DOT adopt a vibration limit of 0.05 ips, which LERA's staff believed DOT previously agreed to in August 2004. Id. LERA also made several recommendations to DOT on changing its construction operations to further limit damage to the property, including structural changes to the foundation of 16 Sutton Square to isolate it from vibrations impacting the property. Id.

As part of its response to repeated complaints about damage to JW's property, DOT engaged WJE Engineers & Architects, PC (“WJE”) on November 9, 2004 to help DOT understand the impact of the Project on JW's property and help it mitigate future impacts. See Def. Ex. N. Specifically, WJE was charged with reviewing vibration data, meeting with JW and his consultants, evaluating the impact of prior and planned construction activity, and identifying adjustments that would reduce vibrations. Id.

In response to DOT's request, Kimball Beasley (“KB”), a senior principal at WJE with over forty years of experience investigating structural problems, conducted an on-site inspection of JW's property on November 22, 2004. See Def. Ex. S. KB found that there was one instance of construction related vibrations that produced vibrations exceeding 0.5 ips for a short period of time on November 3, 2004, which might have caused cosmetic damage. Id. He concluded, however, that construction activities did not cause any structural damage or hazards at the property. Id. KB also made recommendations to avoid disturbance and property damage. Specifically, he recommended that vibrations limits should be lowered to 0.05 ips when JW was present at home. Id. With respect to property damage, however, KB did not suggest a specific limit but reported that 0.5 ips is the standard for fragile structures or facilities containing sensitive electronics and noted that a 1.5 to 2.0 ips limit is the usual limit for normal structures exposed to blast-inducted vibrations. Id. His other recommendations, including adjusting construction methods, were already adopted by DOT.

 December 2004

On December 14, 2004, senior DOT staff and their consultants from DF and WJE again met with JW and his consultant from LERA. See Cl. Ex. 29. During the meeting, DOT's staff explained that they already took steps to avoid vibrations by performing necessary work away from JW's property. Id. DOT also showed that it measured vibrations from different construction methods and modified those methods to minimize vibrations. For example, DOT used smaller hammers and hydro-demolition techniques for concrete removal. Id.

DOT's staff also explained that they considered LERA's proposed vibration limit of 0.05 ips limit to be unrealistic because vibrations above this level were unavoidable given the nature of the work involved. Id. WJE's staff estimated that a more appropriate limit would be 0.5 ips because it would take into account the unusual condition that the property sits directly on the FDR. Id. This is the first time DOT adopted the 0.5 ips vibration limit ⁶ . LERA's staff opposed the 0.5 ips limit arguing that property damage already resulted from vibrations at that level. Id. The two sides eventually agreed that a building conditions survey ought to be conducted to study the impact of ongoing construction on the property ⁷ . Id. DOT also agreed to adding an additional vibration monitor on the first floor of the property. Id.

 May 2005

Leslie E. Robertson, a world renowned structural engineer ⁸ and founder of LERA, wrote Douglas Currey, DOT's Regional Director, on May 4, 2005 with a number of requests. See Cl. Ex. 30. Among them, Robertson followed up on a DOT promise to construct a fence to shield 16 Sutton Square from noise and light emanating from the FDR Drive. Id. In anticipation of the FDR Drive reopening to traffic, Robertson also asked for assurances that the new southbound roadway deck would produce no worse vibrations at JW's property than existed before the Project began given that the new deck was considerably thinner than the old one ⁹ . Id. Additionally, he asked DOT to improve expansion joints ¹⁰ near the property to minimize vibrations caused when vehicles drove over the joints. Id. It's unclear from the record if DOT ever replied to Robertson's letter from May 4, 2005.

 May-July 2006

The newly reconstructed southbound roadway was reopened to traffic in late April 2006. See Def. Ex. O. On May 14, 2006, the DiStefanos complained about continuous vibrations emanating from the FDR Drive that they believed were unrelated to construction. Id. The record indicates that Leslie Robertson met with DOT's Douglas Currey on June 8, 2006 and the two discussed possible remedial measures DOT could take to address vibrations caused by the new, thinner southbound roadway deck. See Cl. Ex. 31. A month later on July 19, 2006, Robertson again met with Currey to complain on JW's behalf about vibrations experienced at the Sutton Square Properties after the southbound roadway reopened. Id. Robertson also asked for a temporary repair to the driving surfaces on the southbound roadway to make it smoother and minimize the vibrations caused by vehicles crossing the expansion joints. Id.

 September 2006 Vibration Study

In response to the complaints of vibrations that followed the reopening of the southbound roadway, DOT asked DF to conduct an extensive vibration study to find out what was causing the vibrations. See Def. Ex. P. DF, in turn, hired vibration engineers from WJE to conduct the study. See Cl. Ex. 69. WJE completed its vibration study and reported its results with recommendations for remediation in September 18, 2006 ¹¹ . See Def. Ex. P. The study involved connecting vibration monitors to bents ¹² located on the southbound roadway nearest to the claimants' properties ¹³ . Vibration monitors also were placed at external portion of claimants' properties: two at the DiStefanos' house and three at JW's house. See Cl. Ex. 69. Additionally, WJE installed a video webcam at the southbound deck at bent 8S to study what type of vehicles caused vibrations. Id.

WJE's 2006 vibration study revealed that perceptible vibrations at claimants' residences were primarily from large vehicles passing over the expansion joints located at bents 8S and 11S. Id. The vibration data indicated that the highest magnitude of vibrations at JW's house was 0.064 ips and 0.017 ips at the DiStefanos' house ¹⁴ . Id. WJE made several recommendations to reduce vibrations emanating from the expansion joints at the southbound deck including, grinding down the roadway surface to make it smoother, locking up the expansion joint at bent 8S, installing a deflection equalizer ¹⁵ device to the expansion joint at bent 11S, and adding mass to both bents.

 DOT's Remedial Efforts

DOT took several remedial measures to reduce vibrations based on WJE's 2006 recommendations: it removed the expansion joint at bent 8S; replaced the expansion joint at 11S with one that had a lower profile; stiffened the columns at bents 8S, 9S, and 10S; and added additional mass to bent 11S to replicate the amount of mass that preexisted the reconstruction Project. See Def. Ex. P. DOT completed these measures in November of 2006. See Cl. Ex. 69.

 2007 Follow Up Vibrations Study

In late February 2007, WJE conducted a follow up study to see if the remedial measure decreased the vibrations impacting the claimants' properties. The 2007 vibration data ¹⁶ indicated that the highest magnitude of vibrations at JW's house was 0.034 ips and 0.006 ips at the DiStefanos' house. Id. Overall, the magnitude of vibrations impacting the properties decreased dramatically. Id.

 2009 Follow Up Vibrations Study

DOT once again hired WJE to conduct a follow up vibration study in 2009 at both Sutton Square properties. The 2009 study was more extensive because it was a controlled study, where the FDR Drive's southbound roadway was closed down to traffic and a vehicle of known weight was driven back and forth to measure the extent of vibrations relative to the weight and speed of the vehicle. The levels of vibrations in the 2009 study were similar to what WJE measured in 2007.

 SGH Vibration Study

JW was dissatisfied with DOT's efforts and, in June 2007, he hired Simpson, Gumpertz & Heger (“SGH”), an engineering firm, to study the magnitude and frequency of the vibrations impacting the claimants' properties. SGH installed seismographs at various locations at the two properties to get an understanding of the problem. The vibrations data that SGH's staff collected at JW's house from November 2007 to March 2017 shows that the daily magnitude of the vibrations remained below 0.35 ips, even though seismographs were moved around to capture the highest level of vibrations. See Cl. Ex. 43. These records also showed that some ten years after construction was completed, JW's house experienced vibrations ranging between 0.2 and 0.25 ips at their highest. Id. However, SGH's data also showed that events causing daily vibrations above 0.09 ips were notably infrequent as of February and March 2017. See Cl. Ex. 45.

Additionally, vibrations data collected by SGH from the DiStefanos' house from January 2009 to March 2017 showed that daily magnitude of vibrations never reached or exceeded 0.2 ips. See Cl. Ex. 44. These records also showed that some ten years after construction was completed, the DiStefanos' house experienced vibrations of approximately 0.15 ips at the highest. Id. However, SGH's data also showed that events causing daily vibrations above 0.015 ips were nearly nonexistent as of February and March 2017. See Cl. Ex. 46.

 ANALYSIS

Claimants jointly allege several causes of action, including, property damage ¹⁷ (first cause of action), annoyance (second cause of action), intentional interference (third cause of action), and fraud (the DiStefanos' fourth cause of action and JW's fifth, sixth, and seventh causes of action). JW separately alleges a claim for breach of contract (fourth cause of action).

 Claimant JW's Cause of Action Alleging Property Damage is Dismissed

By statute, DOT is charged with developing balanced transportation policy that adequately meets the needs of safe and efficient transportation facilities and services at a reasonable cost. See Transportation Law § 14 [1]. With respect to highway safety, its chief responsibility under the Transportation Law is to prepare specifications and designs for the construction and reconstruction of bridges within its jurisdiction. Id. at § 14 [15] [c]. Additionally, under common law, the State owes the public an absolute and nondelegable duty to keeping its highways in a reasonably safe condition taking into account such factors as existing traffic conditions, terrain encountered, and fiscal practicality. See Friedman v. State of New York, 67 NY2d 271, 283 [1986]; Tomassi v. Town of Union, 46 NY2d 91, 97 [1978]. The mere occurrence of an accident on a State roadway does not confer liability, however, since the duty does not have the effect of making the State an insurer of the safety of its roadways. See Tomassi, 46 NY2d at 97. A claimant has the burden of proving the elements of negligence: (1) the existence of a duty on defendant's part as to claimant; (2) a breach of this duty; and (3) injury to the claimant as a result thereof. See Akins v. Glens Falls City School Dist., 53 NY2d 325, 333 [1981].

Pursuant to the Court of Appeal's holding in Weiss v. Fote (7 NY2d 579, 585 [1960]) and its progeny, courts must give due consideration to the proper limits on intrusion into the State's planning and decision-making functions. The Court's deference to a State decision maker's quasi-judicial or discretionary powers to improve the public roads is age old. See Urquhart v. Ogdensburg, 91 NY 67, 71 [1883]. While the Court of Appeals recognized that garden variety claims of negligent maintenance of the highway are necessary, it also recognized the State's important role in designing its roads by granting broad immunity for claims implicating the State's exercise of discretion. See Weiss, 7 NY2d at 585. In doing so, the Court took into account that any public roadway can be improved upon, no matter how careful its design and construction. See Tomassi, 46 NY2d at 97. As a matter of separation of powers, however, courts (and juries) may not cast the State in damages for failing to provide more complete protections. See Weiss, 7 NY2d at 584-586 (“[To] accept a jury's verdict as to the reasonableness and safety of a plan of governmental services and prefer it over the judgment of the governmental body which originally considered and passed on the matter would be to obstruct normal governmental operations and to place in inexpert hands what the Legislature has seen fit to entrust to experts.”); Valdez v. City of New York, 18 NY3d 69, 76 [2011].

However, our courts have significantly narrowed the State's broad immunity over time and expanded the analytical framework for determining whether immunity applies. As a starting point, when a immunity defense is asserted by the State, the first issue for a court to decide is whether the State was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose. See Turturro v. City of New York, 28 NY3d 469, 477 [2016]. The Court in Turturro recognized that governmental bodies perform a variety of functions. Some of these functions are purely proprietary, others are purely governmental, and others have characteristics of both. See Sebastian v. State of New York, 93 NY2d 790, 793 [1999]. The relevant inquiry in determining whether a governmental agency is acting within a governmental or proprietary capacity is to examine the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred. See Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 447 [2011].

The State is deemed to have been engaged in a quintessential governmental function when its acts, such as police and fire protection, are undertaken for the protection and safety of the public interest pursuant to its general police power. See Turturro at 478. By contrast, the State performs a purely proprietary role when its activities essentially substitute for or supplement traditionally private enterprises. Id. at 477. If the State was acting in a governmental capacity, the claimant must prove the existence of a special duty ¹⁸ — that is, a duty owed specifically to claimant that is greater than a duty owed to the public at large. Id. at 478. Even if a claimant establishes a special duty, the State acting in a discretionary governmental capacity may rely on the “governmental function immunity defense.” This defense provides immunity for the exercise of discretionary actions taken during the performance of a governmental function. Id. at 478-479. The governmental function immunity defense, however, is not applicable where the State has acted in a proprietary capacity, even if the acts can be characterized as discretionary. Id. at 479. In that situation, the State would be subject to liability under the ordinary negligence standard. Id.

The State is accorded a limited, “qualified immunity” from liability for its highway planning decision involving traffic engineering. The Court of Appeals in Turturro held that highway planning, design, and maintenance are proprietary functions, arising from a governmental body's proprietary duty to keep its roads and highways in a reasonably safe condition. Id. at 479. Nevertheless, the Court also held that, “[i]n the specific proprietary field of roadway safety, a [governmental body] is afforded a qualified immunity from liability arising out of a highway planning decision.” Id.

Under the doctrine of qualified immunity, the State can be found liable for injuries only if its study of a particular condition is plainly inadequate, or there is no reasonable basis for its design plan. See Friedman, 67 NY2d at 284. The qualified nature of the immunity is based on the principle that once a governmental body is made aware of a dangerous condition it must undertake reasonable study thereof with an eye toward alleviating the danger due to its nondelegable duty to maintain its roads in a reasonably safe condition. See Turturro, 28 NY3d at 480, citing Friedman, 67 NY2d at 284. Furthermore, after the State implements a highway design plan it is under a continuing duty to review its plan in the light of its actual operation. See Turturro, 28 NY3d at 480, citing Weiss, 7 NY2d at 587. Remedial action is necessary even if the design in question complied with reasonable safety standards at the time of construction. See Friedman, 67 NY2d at 286.

Accordingly, the State is entitled to qualified immunity where its planning body has “entertained and passed on the very same question of risk that [a claimant] would put to a jury, and [it] has adopted a policy with respect thereto that has a reasonable basis in safety and efficiency considerations.” See DeLeon v. New York City Tr. Auth., 305 AD2d 227, 228 [1st Dept 2003] (Internal quotation marks omitted.). It is a defendant's burden to establish that the qualified immunity defense applies. See Evans v. State of New York, 130 AD3d 1352, 1354 [3d Dept 2015], lv denied 26 NY3d 910 [2015]).

The qualified immunity defense is available even against a claim alleging property damage provided that the construction project's design complies with the applicable design standard. See Bissell v. State of New York, UID No. 2013-031-068 [Ct Cl, Minarik, J., Sept. 30, 2013]; 145 Route 303 v. State of New York, UID No. 2005-029-483 [Ct Cl, Mignano, J., April 7, 2005]. To defeat the State's defense of qualified immunity, something more than a mere choice between conflicting opinions of experts is required. See Affleck v. Buckley, 96 NY2d 553, 557 [2001]. Additionally, a claimant must show not merely that another option was available but also that the plan adopted lacked any reasonable basis. Id. at 557.

Claimant JW's cause of action for property damage occurs during two periods and the duty owed to him flows from the State's distinct acts in these periods ¹⁹ . First, evidence in this case showed that JW began complaining to DOT about property damage to his property in June 2003 during the construction phase of the Project while the State was constructing the temporary ODR. See Cl. Ex. 32. The majority of JW's complaints and documented proof of damage occurred during the construction phase of the Project. Second, JW alleges and documents proof of property damage after traffic was reintroduced on the southbound deck beginning around April 2006. The record shows that JW complained less frequently about property damage during the second phase and the last documented complaint of property damage was on January 25, 2007.

Following the analytical framework set out in Turturro, the specific acts in question that allegedly caused property damage to JW's home during the construction phase regards the means and methods of construction operations. This involves garden variety construction decisions dealing, for example, with the type of equipment used in demolition, timing of construction activities, location of work, personnel decision, etc. These acts are similar to roadway maintenance activities and involve exercising a predominantly proprietary function. Thus, the applicable standard is ordinary negligence. See Turturro at 479.

By contrast, the State's role in determining the appropriate design standards stems from its policy role, where DOT's decision makers are called upon to balance the needs for safety with other factors, such as efficient transportation services and costs. These decisions implicate DOT's core policy function as defined in the section 14, subsection 1 of the Transportation Law. Moreover, decisions that involve setting safety standards, such as those inherent in updating the DOT's Design Manual and vibration limits for reconstructed roadways, involve the exercise of discretion and use of engineering expertise that should not be second-guessing. These acts are more governmental in nature and may, at the very least, be afforded qualified immunity from liability. JW alleges that these acts also caused property damage when the roadway was reopened to traffic and the State's design decision made in 1998 were put to the test.

 JW's Property Damage Claims Arising During Construction Are Dismissed

One feature common to both the design decisions and construction operations involved in the Project is that the State was required to comply with vibration limits in place at the time the Project began. Those vibration limits were incorporated into the contract for the Project and reflect design criteria adopted in the State's Design Manual. See Cl. Ex. 22, p. 37: Table 1 - Allowable Vibration Intensity. According to this adopted standard, the maximum allowable construction vibrations for overhead buildings that are closest to construction operations, such as claimants' properties, is listed as 50 mm/sec, which equals almost 2.0 ips. Id. This standard is in line with the safe vibration limit ²⁰ recommendations for residential structures near construction zone that was published by AASHTO. See Cl. Ex. 65, Figure 1. None of the reported vibrations levels experienced at either property throughout the construction process came close to reaching these mandated limits.

JW alleges that the State's vibration limits were nevertheless inappropriate. JW's main contention is that his house is unique because it sits directly atop the FDR Drive's roof structure and is, therefore, more susceptible to vibrations emanating from the roadway below. Thus, he argues, the State should have conducted a pre-construction analysis of vibrations impacting his property during the design phase of the Project. He also points to the Project's design specifications wherein the DOT directed its contractor to conduct a building conditions survey to establish vibrations criteria for nearby structures. See Cl. Ex. 22, p. 35-37.

The Court is unpersuaded by these arguments for several reasons. First, JW does not provide any legal authority to support his assertion that the unique nature of his property created a heightened legal obligation on the State to treat his property any differently from any other nearby overhead residential structure. Indeed, JW does not contend or attempt to prove that the State owed him a special duty ²¹ . Additionally, even if a pre-construction building condition survey were completed, it would have simply shown that JW's property was in good condition before construction commenced — a point that was uncontested at trial. Thus, the State would have no reason to set a more conservative limit to construction vibrations or post-construction vibrations as it relates to JW's house. The only type of study that would have revealed a heightened risk of property damage to JW's home is one that would have been costly and impractical to conduct. As the trial record makes abundantly clear, vibration studies are complex and a truly thorough analysis would require closing down the FDR Drive, installing monitors and synchronized cameras, and testing a variety of construction equipment to determine various vibrations impacts on the claimants' properties. However, the State had no reason to believe that JW's property was structurally unsound given that it showed no signs of weakness or heightened sensitivity to vibrations at the design phase. The DOT was aware of the condition of the roof structure that supports JW's house before it began the reconstruction Project because it rehabilitated the roof structure, which entailed doing work on JW's property. Lastly, when the State and JW's own consultants conducted vibration analyses during and after construction, the results showed that the vibration levels were below the limits set in the DOT's Design Manual and in the AASHTO guidelines. Thus, a pre-construction analysis would show exactly what the vibration studies conducted during and after construction showed: the vibration levels resulting from all phases of the Project were within the bounds of the applicable mandatory standards placed on the State.

JW's second principal argument is likewise flawed. He contends that the State was negligent for following vibration criteria set by the DOT Design Manual and AASHTO. Yet, JW did not offer an alternative authoritative and mandatory vibration standard. For example, JW contended that the more appropriate standard is stated in the procedure for avoiding damage from adjacent construction codified in the New York City Department of Buildings' Technical Policy and Procedure Notice No. 10/88. See Cl. Ex. 64. However, this standard is neither mandatory nor relevant because it only applies to historic structures ²² and JW did not prove that his house falls within the definition of a historic structure ²³ . Additionally, JW's contention that the American National Standard and the International Standard are appropriate standards is also unpersuasive because they were not shown to be mandatory standards on the State. See Cl. Exs. 66-68.

Moreover, the other vibration standards that JW argued were more appropriate for the Project were too speculative and unreliable. For example, following complaints of vibrations at JW's house on August 3 and August 4, 2004, an employee of JW's general contractor who was renovating the property reported to LERA's staff that 0.05 ips was a more acceptable vibration limit. See Cl. Ex. 24. Without establishing the qualifications of this person, LERA's staff sought to convince DOT's staff that 0.05 ips should be the maximum allowable vibration limit. See Cl. Ex. C34. Incredibly, Leslie Robertson, JW's own expert, characterized 0.05 ips as an “arbitrary standard” created by “I don't know who.” This didn't stop Robertson from opining that the 0.05 ips vibration limit would result in little to no property damage ²⁴ . Then, contradicting his own testimony, he admitted that if 0.05 ips produced damage, then he would argue for lower and lower vibration limits — “whatever it takes” to presumably reach the point where no damage would result. Robertson's testimony exposed the critical flaw in claimants' liability theory: their argument turned the traditional negligence analysis on its head. Essentially, claimants are asking the Court to adopt some standard of care, no matter its reliability, so long as it gets to their desired result: prima facie liability. The Court declines this invitation because it ignore a basis tenet of negligence: even where a claimant sustains damages, recovery is not guaranteed unless a breach of duty can first be established. In this case, JW failed to prove that the State breached its duty of care with respect to property damage because he failed to prove that the State violated a mandatory standard of care. Additionally, the State could not reasonably reconstruct or design its bridges on a standard that is a moving target. Moreover, the State cannot be held liable for failing to voluntarily adopt a vibration standard that provided more complete protections that it is mandated to provide under law. See Weiss, 7 NY2d at 585; Tomassi, 46 NY2d at 97.

Even if JW could show that the State violated a mandatory vibration limit, the Court would still find that the State acted reasonably because it was very responsive to JW's complaints. When JW first began complaining about property damage in June 16, 2003 (roughly six months after construction began), the State responded appropriately by hiring engineers to monitor vibration magnitudes at the property. Indeed, it is abundantly clear from the record that the State diligently responded to JW's complaints by monitoring vibration levels and frequently engaged in cooperative dialogue with JW and his consultants on whether it was appropriate to modify construction vibration limits. Additionally, DOT and its consulting engineers made adjustments to their construction methods to minimize property damage and disturbance ²⁵ throughout the construction phase. These additional efforts are uncommon and went over and above how DOT usually responds to citizen complaints.

Ultimately, in December 2004, the State voluntarily assumed a duty to JW greater than one it owed to the public at large. See Cl. Ex. 29. Specifically, on December 14, 2004, DOT agreed to reduce the vibration limit to 0.5 ips after its staff received repeated complaints from JW and his consultants of continuing property damage. However, this voluntary change in vibration limits does not alter the Court's finding that the State did not breach its duty to JW even under the applicable ordinary negligence standard because JW was unable to show that his property ever experienced vibrations above 0.5 ips after this more conservative standard was adopted.

Notably, it appears that JW's own expert agreed that DOT acted reasonably. In a letter to JW dated January 31, 2005, Leslie Robertson, candidly wrote “we must concede that DOT has attempted to rise to the occasion” when describing DOT's “genuinely real efforts” to prevent physical damage to JW's house. See Def. Ex. E. He also admitted that the true cause of the damage was the condition of JW's property and not vibrations from the nearby construction. Robertson wrote forthrightly: “Your house is not an ‘old’ house but, quite frankly, it has proven to be more ‘brittle’ than we would have supposed. Despite the fact that we have insisted on keeping vibration levels well below those considered to be acceptable for other buildings, the finishes in your house have not performed well.” This damning admission undermines JW's core argument that DOT's vibration levels were inappropriate. Accordingly, the Court concludes that the State did not breach its duty to JW during the construction phase of the Project.

 JW's Property Damage Claims Alleging Negligent Design are Dismissed

When assessing whether qualified immunity is applicable to highway design decisions, our courts have consistently held that planners who use a design that complies with the relevant design standards in effect at the time enjoy a presumption of qualified immunity. See Lake v. State of New York, 151 AD3d 1425, 1426 [3d Dept 2017] (“Inasmuch as the shoulder that was installed met the relevant design standards in effect at the time of its construction, the Court of Claims properly concluded that defendant cannot be held liable for that design.”) [Internal quotation marks omitted.] citing Schwartz v. New York State Thruway Auth., 61 NY2d 955 [1984]; see also Ramirez v. State of New York, 143 AD3d 880, 882 [2d Dept 2016] (“Here, the Court of Claims correctly applied the doctrine of qualified immunity based on the evidence the defendants submitted at trial that the guardrail was designed pursuant to the design standards set forth by the New York State Department of Transportation, which were the result of a deliberate decision-making process of the type afforded immunity from judicial interference.”). Thus, plans that meet the design standards adopted by the State are presumed reasonable and adequate. The State showed that qualified immunity should apply in this case because it complied with vibration limits that were mandated by law.

Claimants challenge whether the design used by the State for the southbound deck was appropriate given that it was thinner than the previous deck and produced vibrations. Claimants' arguments are unavailing. Foremost, claimants did not dispute that the State's design complied with the DOT's Highway Design Manual and AASHTO guidelines that required reducing the thickness of the southbound deck to withstand seismic events. The State's Highway Design Manual has been recognized as the “preeminent” standard to be applied in the redesign process. See Light v. State of New York, 250 AD2d 988, 989 [3d Dept 1998].

Additionally, the State is not required to continually reevaluate its design standards absent proof that it is no longer appropriate. See Cerio v. Carrington, 161 AD3d 541 [1st Dept 2018] citing Chunhye Kang-Kim v. City of New York, 29 AD3d 57, 59 [1st Dept 2006]. Here, the State learned of design deficiencies when it reopened the southbound roadway to traffic in late April 2006. It adequately fulfilled its obligation to review its design plan and take appropriate remedial measures ²⁶ . Soon after it received complaints from the DiStefanos in mid-May 2006, DOT staff met with Robertson to discuss possible remedial efforts in June 2006. See Def. Ex. O. DOT then undertook an extensive study of the vibration levels impacting claimants' properties, then implemented several remedial measures, and then retested the vibration levels to ensure that they were at acceptable levels. The Court is convinced that the State took seriously its ongoing duty to review its plan in light of its actual operation and take appropriate remedial action as was prescribed by law. See Turturro, 28 NY3d at 480; Friedman, 67 NY2d at 286. The remaining vibrations experienced at the claimants' property were minimal, even if occasionally perceptible, because of the State's remedial efforts. Indeed, by adopting a design standard with respect to vibration levels, the State effectively entertained and passed on the risk of injury from vibrations that are below its adopted standards.

Lastly, claimants' experts relied on studies that are published after the State redesigned the subject roadway and are merely advisory. Moreover, claimants ask this Court to examine the criteria that were considered by the State's professional staff, emphasize factors allegedly overlooked, and, with the benefit of hindsight, rule that the policies were inadequate as a matter of law. See Friedman, 67 NY2d at 283-284. The Court of Appeals in Weiss v. Fote explicitly warned against such second-guessing. See Weiss, 7 NY2d at 588 (“In the area of highway safety, at least, it has long been the settled view, and an eminently justifiable one, that courts should not be permitted to review determinations of governmental planning bodies under the guise of allowing them to be challenged in negligence suits; something more than a mere choice between conflicting opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public.”). As in Weiss, the Court finds that no such evidence was offered by claimants.

Accordingly, the Court finds that the State is entitled to qualified immunity and is not liable for the alleged property damage to JW's home as a result of its redesign of the FDR Drive.

 Claimants' Causes 27 of Action Alleging Private Nuisance is Dismissed

The elements of private nuisance are: (1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's property right to use and enjoy land, (5) caused by another's conduct in acting or failure to act. See Copart Indus. v. Consolidated Edison Co. of NY, 41 NY2d 564, 570 [1977], citing Restatement of Torts § 822.

Here, the Court has already determined that the State's conduct was reasonable given its continuous effort to address the reported vibration issues that ultimately resulted in significant reductions in vibrations. Claimants failed to prove that the State's actions were intentional. Rather, the evidence supports the opposite inference: the State's repeated attempts to resolve vibration issues whether from its construction activities or from traffic evinces its intention to avoid interfering with claimants' normal use of their properties. Accordingly, claimants' cause of action for private nuisance is dismissed.

Thus, the Court need not examine the full merits of claimants' contention that vibration limits were improper with respect to perception of the vibrations. However, given the extensive work involved in the Project and the many accommodations that the State made to claimants during construction, disruptions were simply unavoidable. Although occasional vibrations occur after construction, these minor annoyances are to be expected when living directly above one of the City's busiest roadways. It is part of a trade off. After all, claimants not only enjoy the exclusive views and sense of retreat that comes with their properties, they also greatly benefit from the structural improvements made to the FDR Drive that supports their properties.

 Claimant JW's Cause of Action for Breach of Contract is Dismissed

To state a claim for breach of contract, a claimant must allege: (1) the parties entered into a valid agreement, (2) claimant performed, (3) defendant failed to perform, and (4) claimant sustained damages as a result. See VisionChina Media Inc. v. Shareholder Representative Servs., LLC, 109 AD3d 49, 58 [1st Dept 2013]. To establish the existence of an enforceable agreement, a claimant must establish an offer, acceptance of the offer, consideration, mutual assent, and an intent to be bound. See Kowalchuk v. Stroup, 61 AD3d 118, 121 [1st Dept 2009].

Here, JW alleges in his fourth cause of action that the State entered into multiple oral agreements to repair or reimburse claimant for damages resulting from the reconstruction Project, but failed to do so. This allegation is meritless because, inter alia, JW has failed to prove that any consideration was exchanged. Accordingly, this cause of action is dismissed.

 Claimants' Causes of Action for Fraud is Dismissed

Generally, in a claim for fraud, a claimant must allege “a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury.” See Lama Holding Co. v. Smith Barney, 88 NY2d 413, 421 [1996].

Here, the claimants allege that the State defrauded them by promising to repair their home or reimburse them for damages resulting from the reconstruction Project in an attempt to hinder them from prosecuting their claim. The claimants failed to proffer any evidence at trial supporting this cause of action. Moreover, the decision to bring and prosecute a claim was purely a strategic one on claimants' part. Consequently, it is dismissed.

Based on the foregoing, claims 116583 and 119378 are dismissed in their entirety.

Let judgments be entered accordingly.

Dated: February 28, 2019

FOOTNOTES

1.   See Christopher Gray, STREETSCAPES: Franklin D. Roosevelt Drive; Institutions Use Air Rights Over a Multilevel Marvel, NY Times, May 15, 1988.

2.   See footnote 2.

3.   16 Sutton Square is owned by John C. Whitehead's estate and 14 Sutton Square is owned by Mark DiStefano's estate.

4.   See footnote 2.

5.   Hydro-demolition uses water blasted at high pressure to remove structural materials, such as concrete and asphalt.

6.   The Court cannot credit claimants' contention that DOT staff agreed to the 0.5 ips limit during a meeting in August 9, 2004 because there was no admissible, non-hearsay evidence supporting this contention. See Cl. Ex. 34.

7.   WJE conducted the conditions survey and produced a report dated March 9, 2005 documenting the condition of the building so that it can be compared with any future damage. See Cl. Ex. 27.

8.   Robertson was the lead structural engineer of the original World Trade Center in New York as well as numerous major structural systems throughout the world including high-rise buildings, bridges, museums, schools, airports, etc.

9.   Robertson was referring to DOT's plan to replace the old twenty-seven-inch thick southbound roadway deck with a nine-and-a-half-inch thick deck.

10.   Expansion joints are dividers built into roadways to safeguard roadways from damage that results from movement caused by an external force. Expansion joints protect roadway materials by absorbing movements. Typically, normal temperature fluctuations cause the roadway to expand and contract resulting in erosion of the roadway material. Other environmental changes that cause the roadway to move and result in damage include seismic activities and other sources of vibrations.

11.   The September 18, 2006 study was never entered into the record, but data from that study was incorporated into WJE's follow up study that was done after DOT completed its remediation. See Cl. Ex. 69.

12.   Structural bents are cross-sectional frames that define the shape of a viaduct or other structure.

13.   There are several bents located near the JW's property: bent 9S is located directly below JW's property; bent 8S is north of JW's property and was affixed with an expansion joint; bent 10S is south of JW's property; and bent 11S is even further south than bent 10S and is affixed with an expansion joint. See Def. Ex. G. WJE installed vibration monitors in two places at bents 9S and one at bent 8S. See Cl. Ex. 69.

14.   See Table 1 - Summary of Maximum Accelerations Measured in Captured Event Data.

15.   A deflection equalizer is a device that is placed within an expansion joint to decrease the magnitude of the vibration caused when a vehicle's tire crosses an expansion joint.

16.   See footnote 15.

17.   Although a cause of action for property damage is made in the DiStefanos' claim, they did not prove those claims at trials and their attorneys clarified that only claimant JW was making a claim for property damage. Accordingly, the DiStefanos' claim for property damage is dismissed as abandoned.

18.   “[A] special duty can arise in three situations: (1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known and dangerous safety condition.” See Applewhite v. Accuhealth, Inc., 21 NY3d 420, 426 [2013].

19.   Bifurcating the duty analysis between the duty owed to claimants during construction on the one hand and the duty owed to them during design and implementation of the design on the other is also useful because it avoids confusion. Unfortunately, claimants repeatedly muddied these issues at trial by contending as their main point that property damage (and annoyance) resulted from the State's design decision to decrease the thickness of the southbound roadway. This contention overlooked the obvious point that the majority of property damage (and annoyance) had nothing to do with the thickness of the southbound roadway because the majority of property damage occurred before the southbound roadway was rebuilt. Rather, it had everything to do with the vibrations they experience from construction activities. Thus, claimants failed to recognize that the outcome of the State's redesign for the southbound roadway (as opposed to the construction of the Project) was not realized until the design was implemented — that is, when they felt the consequences of the decreased thickness of the southbound roadway in April 2006.

20.   AASHTO recommends a range between 0.75 ips and 2.0 ips depending on the type of building materials used for normal residential structures and 0.5 ips for fragile or old buildings.

21.   See footnote 19. The issue of whether the State voluntarily assumed a higher duty is addressed below.

22.   A historic structure is defined as, “[a] structure which is a designated New York City Landmark or located within an (sic) historic district, or listed on the National Register of Historic Places and is contiguous to or within a lateral distance of ninety feet from a lot under development or alteration.” Id.

23.   JW's own engineering expert stated that 16 Sutton Square is not an “old house.” See Def. Ex. E.

24.   During cross-examination, Robertson testified that vibration levels for the most part were below 0.05 ips.

25.   Phillip Eng, the current President of the Long Island Rail Road and previously DOT's Executive Deputy Commissioner who oversaw the final design of the FDR Drive renovation project in 2000, testified that in order to accommodate JW, DOT would adjust its construction schedule around his social calendar.

26.   See footnote 20.

27.   Claimants' second and third causes of action are considered together as alleging private nuisance.

Faviola A. Soto, J.