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Decided on August 9, 2004
Court of Claims

103248

For Claimants:
DeMaggio & DeMaggio, LLP
By: David DeMaggio, Esq.
For Defendant:
Hon. Eliot Spitzer
Attorney General of the State of New York

By: Dian Kerr McCullough, Assistant Attorney General
Stephen J. Mignano, J.
Claimants seek recovery for damage to their real property resulting from the alleged negligence of the State of New York. The trial was bifurcated and this decision deals only with the issue of liability.
Claimants are owners of several parcels of real estate on Riverside Avenue in Haverstraw, New York. Albert Gregg, the only claimant to testify, stated that the parcels at issue are located on the shoreline of the Hudson River, downhill from High Tor Mountain, Route 9W and the CSX Railroad Tracks (in descending order). He stated that on September 16, 1999, the date of Hurricane Floyd, he arrived home from work at about 6:00 p.m. and saw a flooding problem in the area. He received a call and was told his street was being evacuated. He and his family were taken to an evacuation center for the night. The following day, he returned and inspected the CSX Tracks and Route 9W.
Based upon the debris trail, Mr. Gregg believed that water from the culvert identified on Exhibit Q as being at Station 34+50 on Route 9W had flooded and washed debris onto the railroad tracks. He opined that water pooled upslope of the tracks and overtopped the tracks at a point uphill from his property. From there the water coursed downhill to washout a section of his and the Kellers' backyard.
Mr. Gregg also testified that on June 16 and 17, 2001, during Tropical Storm Allison, he [*2]observed water from the culvert on Route 9W at Station 34+50 flooding the railroad tracks. The water again pooled upslope of the tracks and over topped the tracks at a site above the claimants' properties. The witness stated that he never experienced this type of flooding prior to Hurricane Floyd. Mr. Gregg identified 14 photographs (Exhibits 3 - 16, inclusive) depicting the damage to the claimants' properties.
Brian Brooker, a professional engineer licensed in New York State, testified on behalf of claimant. The Court accepted the witness as qualified to give the proffered testimony.
Mr. Brooker testified that the maximum capacity of the drainage system of Route 9W is a 20

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