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Supreme Court, Appellate Division, Third Department, New York.

John F. McDERMOTT, Individually and Doing Business as Jem, Inc., Appellant, v. CITY OF ALBANY et al., Respondents.

Decided: October 23, 2003

Before:  CARDONA, P.J., MERCURE, CARPINELLO, ROSE and KANE, JJ. Lewis B. Oliver Jr., for appellant. Gary F. Stiglmeier, Corporation Counsel, (Tara B. Wells of counsel), for respondents.

Appeals (1) from a judgment of the Supreme Court (Benza, J.), entered March 14, 2002 in Albany County, upon a verdict rendered in favor of plaintiff, and (2) from an amended order of said court, entered March 14, 2002 in Albany County, which, inter alia, denied plaintiff's motion to set aside the verdict as to damages.

In 1984, plaintiff purchased a 5.1-acre, undeveloped parcel in the City of Albany.   The property was located in a part of the City that, at the time, had inadequate stormwater drainage, causing regular sewer overflows throughout the neighborhood.   In response to the resulting health and safety concerns, defendants undertook the Buckingham Drive Storm Water Separation Project (hereinafter Project) to divert stormwater out of the sanitary sewer system.   As a result, stormwater was directed onto plaintiff's property and, in the years since the Project was completed in 1990, eroded a preexisting streambed into a silt-laden ravine that, in places, is more than seven feet wide and six feet deep.

Plaintiff commenced this action in 1991 alleging, among other things, that defendants' diversion of stormwater was a trespass or a de facto taking of his property.   At the close of plaintiff's trial proof, however, he withdrew the taking claim.   After all of the remaining claims, except the trespass claim, were either withdrawn or dismissed, a jury returned a verdict finding that although defendants had trespassed upon plaintiff's property, plaintiff had failed to prove any money damages.   Supreme Court denied plaintiff's postverdict motion for money damages and a permanent injunction and awarded him $0.06 in nominal damages.

 On appeal, plaintiff first contends that Supreme Court should have enjoined defendants from continuing to divert stormwater onto his property.   We disagree.   To be entitled to a permanent injunction, plaintiff was required to establish not only irreparable harm, but also the absence of an adequate legal remedy (see Di Marzo v. Fast Trak Structures, 298 A.D.2d 909, 911, 747 N.Y.S.2d 637 [2002];  McNeary v. Niagara Mohawk Power Corp., 286 A.D.2d 522, 525, 728 N.Y.S.2d 840 [2001] ).   In his complaint, plaintiff alleged a de facto taking, which, if proved, could have resulted in the legal remedy of money damages (see e.g. Sassone v. Town of Queensbury, 157 A.D.2d 891, 893, 550 N.Y.S.2d 161 [1990] ).   Having withdrawn this claim, however, plaintiff deliberately limited his available remedies.   That plaintiff may now be deprived of a legal remedy is solely the result of his own decision to withdraw the claim, an insufficient basis for a permanent injunction.

 Furthermore, “[a]n equity court is not bound to decree an injunction where it will produce great public or private mischief, merely for the purpose of protecting a technical or unsubstantial right” (McCann v. Chasm Power Co., 211 N.Y. 301, 306, 105 N.E. 416 [1914] ).   It is uncontroverted that the Project was necessary to correct a serious threat to public health, safety and welfare.   In contrast, the jury found that plaintiff had no quantifiable damages as a result of defendants' trespass.   Under these circumstances, Supreme Court appropriately found that the balance of equities did not favor an injunction (see Di Marzo v. Fast Trak Structures, supra at 911, 747 N.Y.S.2d 637;  Danchak v. Tuzzolino, 195 A.D.2d 936, 937-938, 600 N.Y.S.2d 816 [1993] ).

 Plaintiff's argument that he is entitled to past and future rent is equally unavailing.   Although diminution in rental value can be an appropriate measure of damages for trespass (see Litwin v. Town of Huntington, 248 A.D.2d 361, 361, 669 N.Y.S.2d 634 [1998];  Rose Val. Joint Venture v. Apollo Plaza Assoc., 178 A.D.2d 695, 697, 576 N.Y.S.2d 943 [1991] ), plaintiff did not seek such damages at any time prior to the jury's verdict.   As such, plaintiff's attempt to introduce this new theory of damages on a motion to settle the judgment is improper (see 22 NYCRR 202.48).

 Plaintiff alternatively contends that the verdict should have been set aside as to damages because Supreme Court improperly precluded expert testimony regarding the cost to cure the damage on his property and because the jury instructions improperly shifted the burden of proof on the issue of damages.   Again, we disagree.   The traditional measure of damage to real property due to trespass is the lesser of the diminution in value of the property or the cost to repair, with plaintiff bearing the burden to prove one or the other (see Jenkins v. Etlinger, 55 N.Y.2d 35, 39, 447 N.Y.S.2d 696, 432 N.E.2d 589 [1982];  Prashant Enters. v. State of New York, 228 A.D.2d 144, 147-148, 650 N.Y.S.2d 473 [1996] ).   Here, plaintiff's expert sought to testify that the cost to restore the property to its pre-Project condition exceeded $800,000, several times greater than the unchanged $102,000 value of the property.   Inasmuch as plaintiff's potential recovery would have been limited to the lesser of those two amounts in any event, plaintiff was not prejudiced by Supreme Court's exclusion of this testimony (see CPLR 2002).

 Turning to the jury charge, plaintiff maintains that Supreme Court's failure to instruct the jury regarding the parties' respective burdens of proof on damages resulted in juror confusion sufficient to warrant setting aside the resulting verdict.   In our view, however, Supreme Court properly instructed the jury that plaintiff could recover either for diminution in market value or the cost of restoration and, since plaintiff offered proof on both measures of damages, we see no prejudice arising from Supreme Court's failure to assign a burden of proof to defendants (see CPLR 2002;  Nestorowich v. Ricotta, 97 N.Y.2d 393, 400, 740 N.Y.S.2d 668, 767 N.E.2d 125 [2002];  Mosher v. Murell, 295 A.D.2d 729, 731, 744 N.Y.S.2d 61 [2002], lv. denied 98 N.Y.2d 613, 751 N.Y.S.2d 168, 780 N.E.2d 979 [2002];  cf.  Smith v. Taylor, 304 A.D.2d 902, 903-904, 757 N.Y.S.2d 617 [2003] ).   Accordingly, plaintiff's motion to set aside the verdict was properly denied.

ORDERED that the judgment and amended order are affirmed, with costs.



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