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

Geraldine WARM, etc., et al., Appellants, v. STATE of New York, et al., Respondents, et al., Defendants.

Decided: September 22, 2003

NANCY E. SMITH, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO and STEPHEN G. CRANE, JJ. Annette G. Hasapidis, South Salem, N.Y., for appellants. Eliot Spitzer, Attorney-General, New York, N.Y. (Michael Belohlavek and Daniel J. Chepaitis of counsel), for respondent State of New York. Servino Santangelo & Randazzo, LLP, White Plains, N.Y. (Michael G. Santangelo of counsel), for respondent County of Putnam. Charles J. Acker, Brewster, N.Y., for respondent Raichle-Molitor, Inc. Keane & Beane, P.C., White Plains, N.Y. (Richard L. O'Rourke and Stephanie L. Burns of counsel), for respondents Medrex, Inc., and Harold Lepler.

In an action, inter alia, to recover damages for injury to real property, the plaintiffs appeal (1), as limited by their brief, from so much of a judgment of the Supreme Court, Putnam County (Sweeny, J.), entered November 19, 2001, as, after a nonjury trial, is in favor of the defendants State of New York, County of Putnam, Raichle-Molitor, Inc., and Medrex, Inc., and against them, and, on the ground of inadequacy, is in favor of them and against the defendant Harold Lepler in the principal sum of only $100,000, and failed to award them injunctive relief or punitive damages, and (2) from a judgment of the same court entered December 6, 2001, which, upon the granting of the motion of the defendant Terra 9 Associates pursuant to CPLR 4401 for judgment as a matter of law, is in favor of that defendant and against them dismissing the complaint insofar as asserted against that defendant.

ORDERED that the judgment entered November 19, 2001, is affirmed insofar as appealed from;  and it is further,

ORDERED that the appeal from the judgment entered December 6, 2001, is dismissed as abandoned;  and it is further,

ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

The plaintiffs are the executors of an estate that owns a large parcel of undeveloped land across from the Terravest Office Park on Route 312 in Putnam County.   The defendants County of Putnam, Raichle-Molitor, Inc., (hereinafter Raichele), and Medrex, Inc. (hereinafter Medrex), each owned buildings on separate parcels within the office park.   The defendant Harold Lepler was the acting managing director of a company that developed the site beginning in 1975.

In 1925 or 1926, the defendant State of New York installed a culvert underneath Route 312 to protect the roadway by diverting water.   Water flowed downhill from the office park through the culvert, and onto the estate's property.   Pursuant to a work permit and its amendments issued by the New York State Department of Transportation (hereinafter the DOT), the office park's developer was required to construct certain drainage facilities before the site could be completed.   In 1992, after the plaintiff Geraldine Warm discovered an erosion problem emanating from the culvert, the DOT reviewed its files and discovered that the work permit had never been fully complied with.   The plaintiffs subsequently commenced this action.

After a nonjury trial, the Supreme Court determined that only the defendant Harold Lepler was liable for trespass, and dismissed the plaintiffs' claims against the remaining defendants.   The plaintiffs were awarded $100,000 to restore their property and install a drainage system to prevent future damage.   The court denied the plaintiffs a permanent injunction to stop the flow of water onto the plaintiffs' property, and declined to award punitive damages.

 While an appellate court's authority in reviewing a determination after a nonjury trial is as broad as that of the trial court, due deference is given to the trial court's determination (see Mechwart v. Mechwart, 292 A.D.2d 354, 738 N.Y.S.2d 604;  DiBruno v. Abrams, 208 A.D.2d 672, 674, 617 N.Y.S.2d 371).   Such a determination should not be disturbed on appeal unless it is unsupported by legally sufficient evidence or could not have been reached by any fair interpretation of the evidence (see A & S Trucking Serv. v. New York State Thruway Auth., 268 A.D.2d 493, 702 N.Y.S.2d 347;  Greenberg v. Behlen, 220 A.D.2d 720, 633 N.Y.S.2d 189).

 Here, the record supports the trial court's determination that there was insufficient evidence to demonstrate that the defendants Raichle and Medrex had the requisite intent to render them liable for trespass (see Phillips v. Sun Oil Co., 307 N.Y. 328, 331, 121 N.E.2d 249), or that the defendant County channeled surface water from its property onto the plaintiffs' property such that the quantity and speed of the water was substantially increased, causing damage (see Iglesias v. Dazi, 253 A.D.2d 515, 516-517, 677 N.Y.S.2d 158).   There was also no evidence demonstrating that the increased water flow through the culvert was the result of any action taken by the DOT or that a special relationship existed between the State and the plaintiffs requiring the State to enforce the Highway Law for the plaintiffs' benefit (see Pearlman v. Simons, 276 A.D.2d 762, 763-764, 714 N.Y.S.2d 767).   We further find that the Supreme Court's determination was based on a fair interpretation of the evidence (see Greenberg v. Behlen, supra).

 “With respect to the issue of damages, it is well settled that the determination of a fact-finding court should not be disturbed on appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, especially where the findings of fact rest in large measure on considerations relating to the credibility of witnesses” (Rigopoulos v. State of New York, 236 A.D.2d 459, 460-461, 653 N.Y.S.2d 667).   The record supports the Supreme Court's determination that a monetary award of $100,000 was sufficient to restore the plaintiffs' property and prevent future injury.

 The Supreme Court providently exercised its discretion in denying the plaintiffs a permanent injunction.  “While equitable relief can be a proper remedy to prevent repeated or continuing trespasses even where damages are slight and nominal, equity may withhold the use of such discretionary authority if warranted by the circumstances” (Danchak v. Tuzzolino, 195 A.D.2d 936, 937, 600 N.Y.S.2d 816;  Generalow v. Steinberger, 131 A.D.2d 634, 635, 517 N.Y.S.2d 22).   Here, since the plaintiffs' own expert offered a solution to the property's drainage problem that would prevent further injury, the plaintiffs failed to demonstrate that they had no adequate remedy at law (see Kane v. Walsh, 295 N.Y. 198, 66 N.E.2d 53).   Furthermore, under the circumstances of this case, it would be inequitable to require the office park property owners, who were not liable for trespass, to further reduce the volume and velocity of water flowing from their properties when future damage to the plaintiffs' property can be prevented by other means.

 The Supreme Court properly declined to award punitive damages (cf.   Nardelli v. Stamberg, 44 N.Y.2d 500, 503-504, 406 N.Y.S.2d 443, 377 N.E.2d 975).  “A party seeking to recover punitive damages for trespass on real property has the burden of proving that the trespasser acted with actual malice involving intentional wrongdoing, or that such conduct amounted to a wanton, willful, or reckless disregard of the party's right of possession” (Litwin v. Town of Huntington, 248 A.D.2d 361, 362, 669 N.Y.S.2d 634).   The plaintiffs failed to meet this burden.

The plaintiffs' remaining contentions are without merit.

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