State of New York
Supreme Court : County of Monroe

_______________________________

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

This case involves allegations that ongoing dewatering of a gravel quarry has improperly depressed the water table under plaintiffs' houses. As a result, say the plaintiffs, their wells have gone dry or they have been forced to drill deeper wells; in one case a homeowner states that the second, deeper well has also become useless. The plaintiffs seek damages for out-of-pocket expenses, diminution of property values, stigma damages, and even punitive damages.

There are several motions before the court. The first to be filed was a motion by the plaintiffs to amend the complaint to add two more households to the plaintiff list, to add allegations of gross negligence in the description of the defendant's conduct and trespass as a cause of action, to reduce the ad damnum to 1.5 million dollars from $5 million, and to delete the cause of action for emotional distress.

Defendant does not object to the removal of the emotional distress claim or the reduction of the ad damnum clause. It contests the trespass and gross negligence allegations, however, and cross-moves for partial summary judgment removing the punitive damages and stigma damages claims in the original complaint, as well as the demand for a permanent injunction. The defendant also moves for a complete dismissal of the complaint on behalf of Susan Lafler, who deposed that she had never experienced water problems at her property.

In a 'cross-cross motion' the plaintiffs, in turn, move for summary judgment on behalf of two parties, plaintiffs Farron and Kloesz. According to the plaintiffs' papers, allegations of water problems at these two parties' properties is substantiated by the defendant's own report. The plaintiffs also demand from the defendant certain documents it obtained via FOIL requests, documents which the defendant has refused to produce on the grounds that they constitute attorney work product.

The underlying facts are these: The defendant operates a gravel quarry and have done so for many years. Water accumulates in the quarry, and to keep it in operation the defendant has to pump the water out. Some time in 1998 they began to install new sump pumps to do this job.

According to the plaintiffs this new system was much more powerful than the old one, but the defendant states that the new pumps have less capacity than the previous ones. The plaintiffs also claim that the defendant has stopped pumping the water into an area where it could recharge the aquifer surrounding the quarry, and now discharges the water into a stream which carries the water away. Because of this, the plaintiffs say, the water table for some distance around the quarry has been steadily dropping. When this action commenced the plaintiffs' complaint was that the water problem was created by the new pumping system. As the argument progresses, however, the papers increasingly refer to problems alleged to predate the new pumping system. It seems, at times, as if the plaintiffs wish to claim that the new pump system merely exacerbated a bad situation.

The court finds this shift a troubling one. So, too, is the absence of hard data bearing out the plaintiffs' claims of a systemic problem. For example, the record contains many graphs of the water level in wells, the plaintiffs' and others. All of them show significant seasonal variation, as would be expected. The only support for the plaintiffs' claim would be the long-term trend of these curves, something that can be approximated by finding a midpoint between the seasonal high and low for each period and plotting a line connecting those points. If one does so, it appears that many wells experienced a small but perceptible decline in the 1999-2002 period over which most of these tests were done. In others, though, there is a slight rise in long-term water availability. It is difficult to determine if there is any consistent trend. Plaintiffs refer at times to the complexity of the aquifer as something that the defendant addressed inadequately in its reports and expert analyses. But this complexity also makes the plaintiffs' case harder to prove.

There is some expert proof offered by both sides. Both experts depend heavily on a report commissioned by the defendants as part of a DEC review on groundwater issues, the so-called 'Spectra report.' That report, based on tests in 1999, used increased pumping for a limited period in order to predict what the longer-term effects of the sump operation would be. It found that the effects would be nonexistent except for negligible water level declines in two wells, the Farron and Kloesz wells.

Significant concerns were raised by government agencies about the Spectra testing regimen early in the process, and the plaintiffs supply some of these critical memos in the cross-cross papers. One of the concerns was that the study was to take place during a time of heavier than-normal runoff. In the end, however, the DEC accepted the final Spectra report as a basis for a conditioned license to continue operating, and Hanson took steps to increase water flow to the Farron and Kloesz wells.

The plaintiffs, in response, present a report from a retired SUNY Geneseo professor, William Brennan, who used the flow figures from the Spectra report and extrapolated them to estimate presumed long-term effects. His expert affidavit is short and contains no methodological material; it tends to the conclusory. He claims that there is a substantial depression of the water table around the quarry.

The defendant's expert, Robert Lafleur--the geologist who prepared the Spectra study--claims that the method used by Dr. Brennan is unknown in the field, could not yield reliable results, and is incompatible with data from the area after the end of the study. The defendant's position is that the plaintiffs' water problems are sporadic, to be expected in this area, and started for the most part at a time of extreme drought. There is no provable connection between the quarry operations and the water level.

Although the defendant attempts to substantiate the claim of a 1999 drought with copies of newspapers articles, there is insufficient climatological data in the record to bear out the claim that 1999 was an exceptionally dry year. Furthermore, any degree of drought would exacerbate a general lowering of the water table from 'water table mining,' and thus systemic trouble will obviously come to attention sooner in a dry year. Taking seasonal variations into consideration it is highly likely that the first signs of a slowly declining water supply will manifest themselves at the annual low point of a dry year. Here, too, it is difficult to determine what caused the problems of which the plaintiffs complain or even if there is such a problem.

Neither the defendant nor the court have a problem with the amendment of the ad damnum clause or the removal of the emotional distress claim. The cause of action for trespass is simply a restatement of the original facts plus a different theory of recovery; the court will allow this, as the key criterion for a complaint is the factual basis, not the legal theory. For allegations of gross negligence, though, the plaintiffs need to make some factual showing in support of the claim.

They have failed to do this. There is certainly nothing in the record to suggest gross negligence. The defendant was and is operating under a permit from the DEC, and whatever the problems with the Spectra study it was sufficiently well-founded for the DEC to rely on it. It would be very difficult for the court to conclude that the defendant was grossly negligent for relying on it in turn. This branch of the motion to amend is denied.

The court sympathizes with the defendant's objections to the addition of two new households at this stage in the action. Although these proposed plaintiffs claim not to have experienced problems until 2001, there has still been a long delay before the motion; since the area in which the water table is supposedly low is contiguous, it would have been no problem for the plaintiffs' counsel to canvass the area years ago to obtain a definitive list of properties affected. Nonetheless, these new claims are as actionable as the others, they are not time-barred, and the defendant would presumably have to answer them separately if the cases were not joined. Though there is some prejudice to the delay, on balance it is insufficient to deny this motion.

The defendant's cross-motion to dismiss the punitive damages claim should be granted. There is nothing in the record that raises the slightest suggestion of egregious and wilful conduct. If there is no basis for an allegation of gross negligence a claim for punitive damages would be barred a fortiori.

The plaintiffs argue that it was egregious to continue as the defendant did after hearing concerns like those of Prof. Brennan, who testified with respect to a draft of the Spectra report in 2000. But concerns like Brennan's were addressed by the defendant; its conduct cannot be considered improper simply because its experts (and by implication the DEC's staff) did not agree with him.

Injunctive relief seems very unlikely at this stage of the litigation, but it cannot be excluded as a matter of law. The defendant claims that this action is not permitted because ECL 71-1311 requires a demand to the DEC that it seek an injunction and a refusal from that body. This provision, though, applies only to violations of Articles 23 and 71 of the Environmental Conservation Law, and the court does not construe this action as falling under either article. In effect, the defendant's position is that the DEC permit immunizes it from certain forms of liability here. The court does not agree. This branch of the cross-motion is denied.

The question of stigma damages is a difficult one. As the Second Circuit Court of Appeals has recently noted, this is a subject that has not been addressed by New York courts (Mehlenbacher v AKZO Nobel Salt, Inc., 216 F3d 291, 299). It appears, furthermore, that the question is closely tied to the larger question of 'whether diminution in the value of property, without more, can constitute an interference with use and enjoyment' (loc. cit., emphasis in original).

On this related question there is some guidance in 532 Madison Avenue Gourmet Foods, Inc. V Finlandia Center., 96 NY2d 280, a case decided after Mehlenbacher. There, in a case alleging large-scale economic loss caused by a street closure after an accident, the Court of Appeals held that recovery under a theory of private nuisance was limited to those who suffered personal injury or property damage as well as economic loss (96 NY2d at 291-292). Claims for public nuisance are limited to those where the plaintiff can show special injury beyond that suffered by the public as a whole (ibid., at 292-293; see also, Concerned Citizens of Cedar Heights-Woodchuck Hill Road v DeWitt Fish and Game Club, Inc., 302 AD2d 938). Justice Fisher of this court has recently discussed the 532 Madison Avenue case in the context of a claim for stigma damages (Allen v General Electric, 2003 NY Slip Op 5134U; 2003 NY Misc LEXIS 1319). His conclusion is that stigma damages may be compensable only if there is a viable claim in nuisance. Accordingly, he dismissed those claims where plaintiffs alleged only a loss of property values due to their proximity to a known toxic spill area.

This reasoning is persuasive and should be applied here in the context of both trespass and nuisance claims. There appears to be no claim of any special duty owed to these plaintiffs over and above all those whose actions might be affected by the defendants as landowner; there is, therefore, no cause of action in public nuisance here. The plaintiffs have stated a cause of action in private nuisance and trespass insofar as they claim that the lowering of water levels in their wells constituted a substantial and unreasonable interference with the use and enjoyment of their property. (It must be added immediately that the court has not reached the issue of whether the acts complained of do, in fact, constitute such interference.) In such cases, and in those cases alone, the stigma damage claim may be argued.

It is for this reason that the defendant is entitled to dismissal of the complaint on behalf of plaintiff Lafler. She had deposed that after she heard about the water problems in the area she took things to steps to conserve water. She did not, however, experience any problems with the well. Therefore, her claim that the market value of the house declined because of perceived water problems is insufficient to establish 'substantial and unreasonable interference'; without this and the nuisance and trespass claims it would support there can be no stigma or property value damages. The plaintiffs claim that the Spectra report substantiates their claims with respect to Farron and Kloesz households. This report, though, merely suggests that a slight decrease in water level in these two wells might result from the dewatering . This is not a basis for liability, and does not even in its mild form constitute an admission. There remains a question of fact as to any liability on the part of the defendant. This motion is denied.

Finally, the defendant states that its counsel expended 170 hours of time in deciding which documents available through FOIL would be useful for their case, and that the selection of documents itself shows some of their strategy for defense and is protected from disclosure as attorney work product. The court agrees. Moreover, these documents are by definition available to the public. The plaintiffs are free to request copies of anything they wish from the appropriate governmental agency. To sum up: the complaint may be amended to add the additional plaintiffs and the claim in trespass. Causes of action for emotional distress and punitive damages are struck, and the complaint is dismissed with respect to Susan Lafler. All other motions are denied, without costs or disbursements. Counsel for the defendant may prepare the order.

DATED: Rochester, New York

November 12, 2003

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New York Law Journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.

HOME GUIDES CASES ISSUES INDEX