Claim Linking Management of Canals to Flooding During Hurricane is Rejected

, New York Law Journal

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Erie Canal Flood
Erie Canal Lock 8 on Mohawk River overflowed with water during flooding caused by Hurricane Irene on Aug. 29, 2011.

ALBANY - Dozens of upstate residents failed to state the nature of their claim in a negligence lawsuit contending that mismanagement of the state's canal system contributed to severe flooding during Hurricane Irene in 2011, according to a Court of Claims judge who dismissed the suit.

The plaintiffs accused the New York State Canal Corporation of failing to properly "monitor, maintain, control and operate" the locks, dams, canals and other waterways under its control in the Mohawk River Basin west of Albany. That, in turn, led to the improper drainage of the rains generated by Irene and the flooding of the claimants' homes and businesses, according to the suit.

The action says the flood triggered by Irene in August 2011 was nearly identical to one in June 2006. At the time, the Canal Corp. formed a task force to implement flood control procedures in the Mohawk Valley watershed, but "blatant and dangerous safety violations" persisted until Irene struck, according to the suit.

Court of Claims Judge W. Brooks DeBow noted in Alexandrov v. New York State Canal, 122752, that Court of Claims Act §11(b) requires that a valid claim "state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained."

But DeBow wrote that the Alexandrovclaim is too general to survive the state's dismissal motion.

"It does not identify any location or locations within the Erie Canal System or the Mohawk River Watershed where defendant failed to perform any duty, nor does it state the duty to claimants that was breached," DeBow wrote.

He said he agreed with the state that there is nothing in the complaint to "alert" the state to the negligence being alleged, as required under Bensen v. State of New York, 88 Misc 2d 1035 (Ct Cl 1976), and Grumet v. State of New York, 256 AD2d 441 (2d Dept. 1998).

"The instant claim does not apprise defendant of any alleged design flaw that permitted the flooding of any particular structure(s) that may have failed" or other specific problem that contributed to the flooding "that defendant may have utilized as even a toehold for an investigation into its potential liability," the judge concluded.

DeBow rejected the argument of the plaintiffs' attorney, Cory Ross Dalmata of the DeLorenzo Law Firm in Schenectady, that the claimants be excused from failure to state the nature of the claim because the "specific acts and omissions" are known only to the state at this stage of the litigation.

The judge said that in the months before filing and serving the claim in May 2013, the claimants had the opportunity to "assemble facts" via pre-action discovery under CPLR 3102(c), Freedom of Information Law requests or other methods of independent investigation that could have "provided some factual basis for the allegations of defendant's negligence and would have allowed defendant to investigate the claim."

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