Paul Marinaccio, Sr., Respondent,v.Town of Clarence, Defendant, Kieffer Enterprises, Inc., Appellant.BriefN.Y.February 5, 2013 To Be Argued By: JOSEPH J. MANNA, ESQ. (Time Requested: 20 Minutes) Appellate Division Docket No. CA 10-00292 Erie County Clerk’s Index No. I-2006-006978 Court of Appeals of the State of New York PAUL MARINACCIO, SR., Plaintiff-Respondent, – against – TOWN OF CLARENCE, Defendant, KIEFFER ENTERPRISES, INC., Defendant-Appellant. BRIEF FOR PLAINTIFF-RESPONDENT LIPSITZ GREEN SCIME CAMBRIA LLP Attorneys for Plaintiff-Respondent Paul Marinaccio, Sr. 42 Delaware Avenue, Suite 120 Buffalo, New York 14202 Tel.: (716) 849-1333 Fax: (716) 849-1315 Of Counsel: Joseph J. Manna, Esq. Kenneth E. Webster, Esq. Date Completed: October 24, 2012 i TABLE OF CONTENTS Page TABLE OF CONTENTS ............................................................................................ i TABLE OF AUTHORITIES .................................................................................. vii QUESTION PRESENTED ........................................................................................ 1 JURISDICTIONAL STATEMENT .......................................................................... 3 A. This Court’s Jurisdiction is Limited to Questions of Law ....................... 3 B. The Dissent Is Based on an Incorrect Legal Standard that Is Contrary to the Law of this Case as It Was Charged To the Jury ........................... 4 C. A Question of Fact Existed As to Whether KEI Should Be Liable for Punitive Damages ..................................................................................... 6 D. The Dissenting Justices Made New and Improper Factual Findings Which Contravene the Record and Divest this Court of Subject Matter Jurisdiction ................................................................................................ 7 E. To the Extent That the Dissent Rests On a Mixed Question of Law and Fact, It Divests This Court Of Jurisdiction ........................................ 8 PRELIMINARY STATEMENT ............................................................................... 9 STATEMENT OF FACTS ...................................................................................... 10 A. Mr. Marinaccio Acquires Valuable Developable Land for Investment Purposes in 1995 ..................................................................................... 10 B. KEI’s Development of Lexington Woods Causes Significant Drainage Problems for Surrounding Landowners .................................................. 11 C. The Town Holds a Meeting with KEI Concerning the Drainage Problems in Phase II ............................................................................... 12 ii Page D. KEI Submits a Drainage Plan to Gain Approval for the Development of Phase III .............................................................................................. 13 E. KEI’s Drainage Plan Misrepresents the Location of a Drainage Ditch in Order to Gain Approval for Phase III ................................................. 14 F. KEI’s Drainage Plan Fails to Comply with Standard Engineering Practices .................................................................................................. 14 G. KEI Fails to Comply With the Approved Drainage Plan ....................... 16 H. Despite Four Decades of Experience as a Developer, Much in the Town, KEI Fails to Secure a Drainage Easement or Permission from Mr. Marinaccio and Violates the Town’s Easement Regulations .......... 17 I. KEI Builds a Detention Pond Next to Mr. Marinaccio’s Property With Two 12” Overflow Pipes and Diverts a Massive Amount of Water to His Land .................................................................................................. 19 J. Mr. Marinaccio Learns that KEI is Dumping Water onto His Property Without His Permission or an Easement ................................. 21 K. KEI Refuses to Stop Diverting Water to Mr. Marinaccio’s Property or Help in any Manner to Alleviate the Serious Flooding Problems It Created .................................................................................................... 22 L. KEI Continues to Divert Storm Water onto Mr. Marinaccio’s Property, and Causes a Serious Danger to the Health, Safety and Welfare of the General Public ......................................................................................... 23 M. The First Trial ......................................................................................... 25 N. The Second Trial ..................................................................................... 26 O. KEI Appeals to the Fourth Department .................................................. 30 iii Page P. Mr. Marinaccio Moves to Dismiss KEI’s Appeal Because it “Omits” the Town’s 1995 Survey from the Record, the Only Conclusive Proof of the Location of a Purported Easement on His Property ..................... 30 Q. KEI Loses its Appeal of the Punitive Damages Award to the Fourth Department .............................................................................................. 31 1. The Fourth Department Correctly Determines that the Punitive Damages Award Was Supported by Legally Sufficient Evidence ..........................................................................................31 2. The Dissent Makes New and Erroneous Factual Findings, Which Contravene the Record, and Improperly Substitutes Its Conclusions for Those Made by the Jury .......................................34 3. The Dissenting Justices Apply a Legal Standard Contrary to the Law of this Case as It Was Charged To the Jury ............................36 R. KEI Appeals from the Fourth Department’s Memorandum and Order ....................................................................................................... 38 ARGUMENT ........................................................................................................... 38 POINT I THE PUNITIVE DAMAGES AWARD SHOULD BE AFFIRMED BECAUSE IT IS SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE UNDER THE CHARGE THAT WAS READ TO THE JURY WITHOUT KEI’S OBJECTION .......................................................................................... 38 A. KEI Did Not Object to the Punitive Damages Jury Instructions at the Time of Trial and, as such, They are the Law of this Case .................... 39 B. There is a Valid Line of Reasoning to Support the Jury’s Conclusion that KEI’s Wanton and Reckless and/or Malicious Conduct Warranted Punitive Damages ................................................................................... 41 iv Page (1) KEI refused to stop diverting water to Mr. Marinaccio’s property or provide Mr. Marinaccio with any assistance to rectify the serious flooding problem it created .............................................................42 (2) KEI’s intentional diversion of water on Mr. Marinaccio’s property caused a serious danger to the health, safety and welfare of the general public, as well as Mr. Marinaccio’s friends and family ....43 (3) Despite four decades of development experience, much in the Town, KEI violated the Town’s easement regulations and intentionally diverted water to Mr. Marinaccio’s property without an easement or his permission ........................................................44 (4) KEI misrepresented the location of and dug out a “drainage ditch” located on Mr. Marinaccio’s property without his permission in order to flow water on his land and gain approval for Phase III development from the Town ...........................................................46 (5) KEI failed to comply with the approved drainage plan it presented to the Town .....................................................................................47 (6) KEI failed to comply with standard engineering practices .............48 (7) KEI owned the mitigation pond, which overflowed on Mr. Marinaccio’s property .....................................................................49 POINT II THE EASEMENT AFFIRMATIVE DEFENSE WAS PROPERLY PRECLUDED .................................................................................................... 50 A. The Fourth Department Properly Concluded that the Subject Easement Was Irrelevant to this Case Based on Proof in the Record .................... 50 B. The Easement Affirmative Defense Was Not Pled and was Properly Precluded Because it Caused Great Surprise .......................................... 53 v Page C. Raising Mr. Marinaccio’s Permission In a Null Pleading Does Not Obviate the Need to Plead Easement as An Affirmative Defense, Especially Since the Evidence Conclusively Established that No Party Had Mr. Marinaccio’s Permission .......................................................... 56 D. Mr. Marinaccio’s Fourth Amended Complaint Did Not Raise the Grant of an Easement By a Prior Land Owner ................................................. 58 E. Mr. Marinaccio Did Not Willfully Fail To Disclose the Existence of an Easement ............................................................................................ 59 F. KEI’s Argument that the Trial Court Should Have Taken Judicial Notice of the Easement Lacks Merit ...................................................... 60 G. Estoppel Precludes the Easement Defense ............................................. 61 POINT III NO EASEMENT EXISTS ................................................................................. 63 A. If An Easement Existed in 1966, It Was Abandoned ............................. 63 B. If An Easement Existed, It Was Not To Drain Lexington Woods ......... 64 POINT IV THE BELATED EASEMENT DEFENSE WOULD NOT HAVE IMPACTED THE PUNITIVE DAMAGES VERDICT ................................... 65 POINT V THERE WAS NO FRAUD ............................................................................... 69 A. KEI’s Brief Contains Unjustified and/or Unwarranted Accusations and Criticisms of Mr. Marinaccio and His Counsel ............................... 69 POINT VI THE COURT PROPERLY EXCLUDED THE TOWN’S PROPOSED EXPERT ............................................................................................................ 75 vi Page A. KEI Failed to Argue Before The Trial Court That Mr. Marinaccio Did Not Demand Expert Disclosure ....................................................... 76 B. Mr. Marinacico Requested Expert Disclosure from KEI ....................... 77 C. KEI Failed to Comply with a Court Order Requiring Disclosure of Any Experts ............................................................................................ 77 D. KEI Failed to Make Expert Disclosure Pursuant to CPLR §3101(a)(1)(i) .......................................................................................... 78 E. KEI Failed to Preserve its Argument that Mr. Marinaccio Did Not Comply with 22 NYCRR 202.7.............................................................. 78 F. The Trial Court Did Not find that KEI Had Timely Served Their Damages Expert Disclosure .................................................................... 79 POINT VII KEI’S OBJECTIONS ARE WAIVED AND UNPRESERVED BECAUSE IT DID NOT OBJECT TO THE COURT’S INSTRUCTION TO THE JURY .... 81 A. Jury Charge Regarding Mr. Marinaccio’s Lack of a Duty to Maintain His Land .................................................................................................. 82 B. The Trial Court did not Foreclose the Jury from Considering Causation ................................................................................................ 83 C. Reliance on Engineering Practice Is no Defense to Trespass................. 84 CONCLUSION ........................................................................................................ 85 vii TABLE OF AUTHORITIES Cases Abbott v. Prudential Ins. Co. of Am., 34 N.Y.S.2d 818 (4th Dept. 1942) .......................................................................70 Aikens Constr. of Rome, Inc. v. Simons, 284 A.D.2d 946, 727 N.Y.S.2d 213 (4th Dept. 2001)..........................................56 Arachy v. State, 196 A.D.2d 625, 601 N.Y.S.2d 349 (2d Dept. 1993) ...........................................62 Baylis v. Wood, 246 A.D. 779, 284 N.Y.S.2d 109 (2d Dep’t. 1935) ...................................... 69, 71 Beltz v. City of Buffalo, 61 N.Y.2d 698, 460 N.E.2d 1089 (1984) .............................................................81 Bender v. New York City Health & Hosp. Corp., 38 N.Y.2d 662, 345 N.E.2d 561 (1976) ...............................................................61 Braman v. Rochester Gas & Elec. Corp., 54 A.D.2d 174, 388 N.Y.S.2d 407 (4th Dept. 1976)............................................54 Branower & Son v. Waldes, 173 A.D. 676, 160 N.Y.S. 168 (1st Dept. 1916) ..................................................56 Brown v. Concord Nurseries, Inc., 53 A.D.3d 1067, 863 N.Y.S.2d 314 (4th Dept. 2008)..........................................81 Brown v. Du Frey, 1 N.Y.2d 190, 135 N.E.2d 469 (1956) .................................................................40 Buckin v. Long Island R.R. Co., 286 N.Y. 146, 136 N.E.2d 88 (1941) ..................................................................... 4 viii Page Cahill v. Harter, 277 A.D.2d 655, 716 N.Y.S.2d 447 (3d Dept. 2000) ...........................................76 Caprio v. State, No. 103245, 2003 WL 21512527 (Ct. Cl. May 28, 2003) ...................................61 Cherry v. Koch, 129 Misc.2d 346, 491 N.Y.S.2d 934 (N.Y. Sup. Ct. 1985) .................................57 Chlystun v. Kent, 185 A.D.2d 525, 586 N.Y.S.2d 410 (3d Dept. 1992) ...........................................54 Cindy M.G. v Michael A., 130 A.D.2d 917, 516 N.Y.S.2d 328 (3d Dept. 1987) ............................................. 4 Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493, 352 N.E.2d 1145 (1978) .................................................... 6, 7, 38 Cole Fischer Rogow, Inc. v. Carl Ally, Inc., 29 A.D.2d 423, 288 N.Y.S.2d 556 (1st Dept. 1968) ............................................61 Eden v. Bd. of Trustees of State Univ. of N.Y., 49 A.D.2d 277, 374 N.Y.S.2d 686 (2d. Dept. 1975) ............................................61 Fitzpatrick & Weller P.C. v. Miller, 21 A.D.3d 1374, 802 N.Y.S.2d 292 (4th Dept. 2005)..........................................82 Fleet Bank v. Powerhouse Trading Co., 267 A.D.2d 276, 700 N.Y.S.2d 53 (2d Dept. 1999) .............................................76 Griffin v. Griffin, 231 A.D. 819, 246 N.Y.S.885 (1st Dept. 1930) ...................................................70 Halmar Distribs. v. Approved Mfg. Corp., 49 A.D.2d 841, 373 N.Y.S.2d 599 (1st Dept. 1975) ............................................56 ix Page Harris v. Armstrong, 64 N.Y.2d 700, 474 N.E.2d 1191 (1984) ...................................................... 40, 82 Hawley v. Travelers Indem. Co., 90 A.D.2d 684, 455 N.Y.S.2d 884 (4th Dept. 1982)............................................56 Holmes v. State, 32 Misc.2d 1077, 226 N.Y.S.2d 626, (Ct. Cl. 1962) ............................................85 Hunter v. New York, Ont. & W. R.R. Co., 116 N.Y. 615, 23 N.E. 9 (1889) ...........................................................................60 In re 1555 Boston Rd. Corp. v. Finance Adm’r of the City of New York, 61 A.D.2d 187, 401 N.Y.S.2d 536 (2d Dept. 1978) .............................................61 In re Birnbaum, 76 N.Y.2d 783, 559 N.E.2d 673 (1990) ................................................................. 8 In re Crowley v. O’Keeffe, 74 N.Y.2d 780, 543 N.E.2d 744 (1989) ................................................................. 8 In re Daubman v. Nassau County Civil Serv. Comm’n, 195 A.D.2d 602, 601 N.Y.S.2d 14 (2d Dept. 1993) .............................................76 In re Matter of Selle, 286 A.D. 1058, 144 N.Y.S.2d 798 (3d Dept. 1955) .............................................69 In re Reynolds, 23 A.D.2d 623, 257 N.Y.S.2d 368 (4th Dept. 1965)............................................70 Jamaica Estates v. Smith, 177 A.D. 882, 163 N.Y.S. 389 (1st Dept. 1917) ..................................................70 Joyce v. Katzburg, 213 A.D. 883, 209 N.Y.S. 854 (2d Dept. 1925) ...................................................70 x Page Kadan v. Volkswagen of Am., Inc., 111 A.D.2d 540, 489 N.Y.S.2d 412 (3d Dept. 1985) ...........................................76 Keinz v. Niagara Mohawk Power Corp., 41 A.D.2d 431, 343 N.Y.S.2d 963 (4th Dept. 1973)............................................54 Keller v. State, 19 Misc.2d 794, 174 N.Y.S.2d 358 (Ct. Cl. 1959) .................................. 83, 84, 85 Kerhonkson Lodge, Inc. v. State, 4 A.D.2d 575, 168 N.Y.S.2d 56 (3d Dept. 1957) .................................................83 Kluttz v. Citron, 2 N.Y.2d 379, 141 N.E.2d 347 (1957) ................................................................... 4 Leonard v. Home Owners' Loan Corp., 297 N.Y. 103, 75 N.E.2d 261 (1947) ..................................................................... 5 Leszczynski v. Penn. R.R. Co., 274 A.D. 1003, 84 N.Y.S.2d 579 (2d Dept. 1948) ...............................................70 Loomis v. City of Binghamton, 34 N.Y.2d 537, 309 N.E.2d 871 (1974) ................................................................. 8 Lucian v. Schwartz, 55 A.D.3d 687, 856 N.Y.S.2d 643 (2d Dept. 2008) .............................................79 Marinaccio v. Town of Clarence, 90 A.D.3d 1599, 936 N.Y.S.2d 412 (4th Dept. 2011).............................................. ........................................................................... 4, 5, 6, 7, 8, 31, 32, 33, 34, 36, 56 Marwin v. Top Notch Construction Corp., 50 A.D.3d 977, 856 N.Y.S.2d 238 (2d Dept. 2008) .............................................79 Mendez v. Goroff, 25 Misc.2d 1013, 203 N.Y.S.2d 568 (N.Y. Sup. Ct. 1960) .................................57 xi Page Millard v. Delaware, Lackawanna & W. R.R. Co., 204 A.D. 80, 197 N.Y.S.2d 474 (3d Dept. 1923) .................................................57 New York Insulated Wire Co. v. Westinghouse Elec. & Mfg. Co., 32 N.Y.S. 1127, 88 Hun 269 (1st Dept. 1895) .....................................................57 Noonan v. City of Albany, 79 N.Y. 470, 34 Sickels 470 (1880) .....................................................................83 Oram v. Capone, 206 A.D.2d 839, 615 N.Y.S.2d 799 (4th Dept. 1994)..........................................76 Puderbaugh v. State Emp’s Fed. Credit Union, 276 A.D.2d 992, 714 N.Y.S.2d 387 (3d Dept. 2000) ..........................................76 Quaglia v. Incorporated Vill. of Munsey Park, 54 A.D.2d 434, 389 N.Y.S.2d 616 (2d Dept. 1976) .............................................61 Rossi v. Matkovic, 227 A.D.2d 609, 643 N.Y.S.2d 618 (2d Dept. 1996) ...........................................79 Ryan v. St. Francis Hosp., 62 A.D.3d 857, 878 N.Y.S.2d 786 (2d Dept. 2009) .............................................79 Schoenborn v. Kinderhill Corp., 98 A.D.2d 831, 470 N.Y.S.495 (3d Dept. 1983) ..................................................56 Scholing v. O’Conner, 209 A.D. 839, 204 N.Y.S. 777 (3d Dept. 1924) ...................................................70 St. Lawrence Explosives Corp. v Law Bros. Contr. Corp., 170 A.D.2d 957, 566 N.Y.S.2d 127 (4th Dept. 1991)................................... 56, 57 Stella v. Stella, 92 A.D.2d 589, 459 N.Y.S.2d 478 (2d Dept. 1983) .............................................57 xii Page Swensson v. New York, Albany Despatch Co., 309 N.Y. 497, 131 N.E.2d 902 (1956) ................................................................... 4 Telaro v. Telaro, 25 N.Y.2d 433, 255 N.E.2d 158 (1969) ...............................................................76 Titlebaum v. Loblaws, Inc., 75 A.D.2d 985, 429 N.Y.S.2d 91 (4th Dept. 1980)..............................................40 Walton v. Stafford, 14 A.D. 310, 57 N.E. 92 (1st Dept. 1897) ............................................................60 Western New York Land Conservancy, Inc. v. Cullen, 66 A.D.3d 1461, 886 N.Y.S.2d 303 (4th Dept. 2009)..........................................65 Wrobleski v. Wakefield Homes, Inc., 46 A.D.2d 805, 361 N.Y.S.2d 36 (2d Dept. 1974). ..............................................57 Statutes CPLR § 3018 ............................................................................................................55 CPLR § 3018(b) .......................................................................................................55 CPLR § 3101(a) .......................................................................................................77 CPLR § 3101(d) ................................................................................................ 79, 80 CPLR § 3101(d)(1)(i)...............................................................................................79 CPLR § 5601(a) .....................................................................................................3, 8 CPLR §3101(a)(1)(i) ................................................................................................78 Highway Law Section 2 ...........................................................................................63 Highway Law Section 205 .......................................................................................63 xiii Page New York Const., Art. VI, § 3 .................................................................................50 New York Const., Art. VI, §3(a) ............................................................................... 3 Regulations 22 NYCRR 202.7 .....................................................................................................78 1 QUESTION PRESENTED Whether there is any valid line of reasoning and/or permissible inferences which could possibly lead the jury in the case at bar to conclude that defendant Kieffer Enterprises, Inc.’s (“KEI”) act of intentionally diverting large amounts of storm water onto the plaintiff Paul Marinaccio, Sr.’s (“Mr. Marinaccio”) land without an easement and without permission for several years was (a) wanton and reckless and/or (b) malicious and, as such, warranted punitive damages, where Mr. Marinaccio presented evidence at trial that, among other things: 1. KEI refused to stop its unlawful drainage onto Mr. Marinaccio’s land or to assist in alleviating the flooding after it was contacted by Mr. Marinaccio, who asked for help from KEI on multiple occasions; 2. KEI’s owner, Bernard Kieffer, had approximately 40 years of experience in land development, most of which was in the Town of Clarence (the “Town”) where KEI eventually flooded Mr. Marinaccio’s land; 3. There were significant drainage problems prior to KEI’s further development of the property adjacent to Mr. Marinaccio’s land that the Town required be corrected as a condition to further development; 4. KEI was aware and told that it needed a perpetual easement across Mr. Marinaccio’s land to avoid further drainage problems; 2 5. KEI did not get permission or an easement from Mr. Marinaccio before diverting substantial amounts of water onto Mr. Marinaccio’s land; 6. KEI did not comply with the Town of Clarence’s easement regulations, despite its 40 years of development experience in the Town; 7. KEI improperly constructed a retention pond and installed outlet pipes to divert a substantial amount of water from the pond to Mr. Marinaccio’s land; 8. The outlet pipes were installed on Mr. Marinaccio’s land without his permission; 9. KEI dredged out an abandoned farmer’s furrow located on Mr. Marinaccio’s property without his permission in order to route additional water onto his property; 10. KEI misrepresented the location of the farmer’s furrow to the Town in order to gain approval for Phase III development; 11. KEI failed to follow sound engineering practices in designing the retention pond and preparing its drainage plan; and 12. KEI’s intentional diversion of water onto Mr. Marinaccio’s land ultimately resulted in the creation of approximately 37 acres of new and undevelopable wetland? Answer: Plaintiff-Respondent submit that the answer is “yes.” 3 JURISDICTIONAL STATEMENT Mr. Marinaccio respectfully submits that this Court does not have subject matter jurisdiction over Defendant-Appellant, Kieffer Enterprises, Inc.’s (“KEI”), instant appeal because: (1) a clear question of fact existed concerning whether KEI should be liable for punitive damages; (2) the dissent at the Appellate Division, Fourth Judicial Department (“Fourth Department”), rests not on a question of law, but on new and improper findings of fact based on a standard that is contrary to the law of this case as it was charged to the jury; and (3) to the extent that a mixed question of law and fact may exist, it divests this Court of subject matter jurisdiction. A. This Court’s Jurisdiction is Limited to Questions of Law Pursuant to the New York Const., Art. VI, §3(a), “the jurisdiction of the court of appeals shall be limited to the review of questions of law.” Further, pursuant to CPLR § 5601(a) An appeal may be taken to the court of appeals as of right in an action originating . . . from an order of the appellate division which finally determines the action, where there is a dissent by at least two justices on a question of law in favor of the party taking such appeal. 4 In the instant case, because the Fourth Department’s dissent (the “Dissent”) is based on a differing view of the underlying facts, not the applicable legal standard, the Court must dismiss KEI’s appeal. See Cindy M.G. v Michael A., 130 A.D.2d 917, 516 N.Y.S.2d 328 (3d Dept. 1987), appeal dismissed 71 N.Y.2d 948, 524 N.E.2d 146 (1988). B. The Dissent Is Based on an Incorrect Legal Standard that Is Contrary to the Law of this Case as It Was Charged To the Jury Here, the Dissent’s erroneous conclusion that there was insufficient evidence in the record to warrant a punitive damages award (Marinaccio v. Town of Clarence, 90 A.D.3d 1599, 1604; 936 N.Y.S.2d 412 (4th Dept. 2011)) was based on their application of a new and improper legal standard, not the law of the case as it was charged to the jury. See Kluttz v. Citron, 2 N.Y.2d 379, 141 N.E.2d 347 (1957) (Unless timely and proper exception is taken thereto, instruction, even if erroneous, becomes law of case); Swensson v. New York, Albany Despatch Co., 309 N.Y. 497, 500-01, 131 N.E.2d 902 (1956) (“we need only consider whether plaintiffs have established a prima facie case under the law as stated by the Trial Judge. Since no exception was taken to the charge, it became the law of the case.”); Buckin v. Long Island R.R. Co., 286 N.Y. 146, 149, 136 N.E.2d 88 (1941) (“No objection was made by the plaintiff owner to this charge, nor did he make 5 any requests to charge. Thus, although erroneous, this charge became the law of this case”); Leonard v. Home Owners' Loan Corp., 297 N.Y. 103, 103, 75 N.E.2d 261 (1947) (“Where plaintiffs in personal injury action did not object to charge . . . such charge became ‘law of the case”). More specifically, in incorrectly concluding that the evidence Mr. Marinaccio presented did not warrant an award of punitive damages (Marinaccio, 90 A.D.3d at 1604), the Dissent applied the trial court’s instructions concerning the amount of the award of punitive damages (1884). However, these are separate and distinct legal issues and, as such, the trial court gave separate and distinct jury instructions; one concerning KEI’s liability for punitive damages (1780), which is the subject of this appeal, and the other concerning the amount of the award (1884), a non-issue in the instant appeal and the prior appeal to the Fourth Department. Moreover, the trial court’s instruction concerning the amount of punitive damages was not given until after the jury had already concluded that punitive damages were warranted (4966) based on the evidence presented (1884). The law of this case, as charged to the jury, stated that punitive damages were warranted where “the acts of [KEI] that caused the conditions complained of were wanton and reckless and/or malicious (1780).” Nonetheless, the Dissent applied a new and incorrect legal standard, which was not charged to jury, and concluded that Mr. Marinaccio failed to demonstrate that “KEI was motivated by 6 maliciousness or vindictiveness or that KEI engaged in such ‘outrageous or oppressive intentional misconduct to warrant an award of punitive damages (Marinaccio, 90 A.D.3d at 1604).” As such, because the Dissenting Justices did not even consider whether Mr. Marinaccio presented sufficient evidence to warrant a punitive damages award based on the law of the case as charged to the jury, there was not a dissent on a question of law and KEI’s appeal should be dismissed. C. A Question of Fact Existed As to Whether KEI Should Be Liable for Punitive Damages In Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493, 352 N.E.2d 1145 (1978), this Court found that it was error to dismiss a claim for punitive damages as a matter of law when there were questions of fact concerning whether the defendant “knowingly” violated Civil Rights Law 51. In so holding, this Court identified the differences between a decision based on the alleged insufficiency of evidence (a decision made “as a matter of law” based on the lack of evidence to support a punitive damage award) and one that is alleged to be against the weight of the evidence (which involves a review of the facts to determine if the jury made a clearly incorrect factual conclusion based on the evidence). Here, the Fourth Department’s majority reviewed the record facts and correctly applied law of this case, as charged to the jury (1780), when it concluded 7 that there was a valid line of reasoning supporting the jury’s conclusion that KEI’s conduct was sufficiently egregious to warrant an award of punitive damages (Marinaccio, 90 A.D.3d at 1600). The reasons for its conclusion are articulated in the subject Memorandum and Order from the Fourth Department (Id.) and discussed herein. See infra at pp.31-34. Additionally, as discussed below, Mr. Marinaccio submitted substantial evidence at the time of trial, which undoubtedly supported the jury’s award of punitive damages and, at a minimum, raised an issue of fact as to whether KEI’s conduct was “wanton and reckless and/or malicious (1780).” See infra at p. 19 to 32. In light of the existence of, at a minimum, a question of fact, it is impossible for the Dissent to be based solely on a question of law and the instant appeal should be dismissed. See Cohen, supra. D. The Dissenting Justices Made New and Improper Factual Findings Which Contravene the Record and Divest this Court of Subject Matter Jurisdiction As this Court previously held, “the Appellate Division does not have the power to make new findings of fact in a jury case.” Cohen, 45 N.Y.2d at 497. Nevertheless, that is exactly what the Dissenting Justices did – they made new findings of fact that are both incorrect and unsupported by the record. See infra at pp. 10-28; 33-44. For example, the Dissent found that KEI neither intended to 8 flood Mr. Marinaccio’s land nor intended to cause the extensive damage that was caused (Marinaccio, 90 A.D.3d at 1603). This was contrary to the jury’s appropriate conclusion that KEI’s conduct was intentional (4965). Thus, KEI’s appeal must be dismissed because the Dissent is based on new and improper factual findings and not a question of law. E. To the Extent That the Dissent Rests On a Mixed Question of Law and Fact, It Divests This Court Of Jurisdiction As explained above, there is no question that the Dissent rests its opinion on new findings of fact. This Court has expressly held that “where it is equivocal whether a dissent rests upon disagreement in fact or law, the dissent is not on a question of law within the meaning of CPLR § 5601(a).” See e.g., In re Birnbaum, 76 N.Y.2d 783, 559 N.E.2d 673 (1990), dismissing appeal from 159 A.D.2d 997, 552 N.Y.S.2d 738 (4th Dept. 1990); In re Crowley v. O’Keeffe, 74 N.Y.2d 780, 543 N.E.2d 744 (1989), dismissing appeal from 148 A.D.2d 816, 538 N.Y.S.2d 652 (3d Dept. 1989); Loomis v. City of Binghamton, 34 N.Y.2d 537, 309 N.E.2d 871 (1974), dismissing appeal from 43 A.D.2d 764, 350 N.Y.S.2d 213 (3d Dept. 1973). Hence, the blend of questions of fact and law (if there is one), divests this Court of subject matter jurisdiction. 9 PRELIMINARY STATEMENT This brief is submitted on behalf of the Plaintiff-Respondent, Paul Marinaccio, Sr. (“Mr. Marinaccio” or “Plaintiff”) and in opposition to the appeal taken by Kieffer Enterprises, Inc. (“Kieffer” or “KEI”). By settlement agreement between KEI and Mr. Marinaccio, the instant appeal is limited to a jury award of $250,000 in punitive damages against KEI relating to its wanton and reckless and/or malicious conduct in connection with its intentional diversion of storm water onto Mr. Marinaccio’s property in the Town of Clarence, New York (the “Town”). All other issues and arguments raised in KEI’s instant appeal were unanimously rejected by the Fourth Department and unpreserved before the trial court. As such, the only issue before this Court is the sufficiency of the evidence presented by Mr. Marinaccio in support of the jury’s award of punitive damages. For the reasons that follow, the Court should uphold the jury’s punitive damages verdict and the trial court’s judgment awarding $250,000 in punitive damages against KEI and affirm the decision of the trial court and the Fourth Department. 10 STATEMENT OF FACTS A. Mr. Marinaccio Acquires Valuable Developable Land for Investment Purposes in 1995 Mr. Marinaccio moved to Western New York in 1963 after completing the fifth grade in Italy, where he was born (3157). After the fifth grade, he received no other formal education (563). His native language is Italian. (3157). Mr. Marinaccio, since the age of 19, has made his living in the construction business (563). By all accounts, he is a successful contractor. In the spring of 1995, Mr. Marinaccio’s close personal friend and a well- known and highly successful real estate developer in Western New York, Carmen Cimato, suggested that Mr. Marinaccio consider buying from a third party, 42 acres of prime real estate on Lapp Road in Clarence, New York (582, 3187). The two friends walked the land together and concluded that it was “a good piece of land,” and Mr. Cimato recommended that his close friend purchase it as an investment (3189). When they walked the land before buying it, there was no standing water, marshy areas or cattails anywhere (585, 3190). “It was completely dry (585).” In June 1995, (3204) Mr. Marinaccio and his then wife purchased the property with plans to eventually subdivide it and sell building lots (3191-3192). 11 As part of a divorce, Mrs. Marinaccio transferred her interest in the property to Mr. Marinaccio in January 2002 (3206). At the time Mr. Marinaccio purchased the land, there were a few homes built south of it in an area called Lexington Woods, which KEI had already started to develop (3207). However, there were no ponds directly abutting the property or flowing water to it by artificial means (3208). B. KEI’s Development of Lexington Woods Causes Significant Drainage Problems for Surrounding Landowners By 2000, KEI had already built Phases I and II of Lexington Woods, but was trying to get approval to construct Phase III (4411). At that time, Phase II residents and National Fuel, which had an easement in Lexington Woods and just south of Mr. Marinaccio’s property, were already experiencing and complaining about serious drainage problems in Phase II (4411, 4431). For example, residents complained about flooding in the roads of Phase II, where the Town Engineer personally observed two inches of standing water and ponding in the roads (390). Additionally, one of the subsurface pipes used for drainage of Phase II was plugged or crushed and hence was not allowing water to leave Phase II (390-391). Of note, that pipe, which KEI later fixed in order gain approval for Phase III development, outfalls into a ditch that it admittedly “dug out” to route water to Mr. Marinaccio’s property (391). 12 C. The Town Holds a Meeting with KEI Concerning the Drainage Problems in Phase II In an effort to alleviate the drainage problems in Phase II, and to secure approval to begin construction of Phase III, Town officials met with KEI and complaining residents on June 9, 2000 and June 30, 2000 (4411, 4434). At that time, the Town recorded in its official notes the contents of the meetings with KEI and, more specifically, that “the key to developing a long term solution [to the drainage problems] will be the Town’s ability to extend and maintain ditches to Lapp Road . . . .” (4434). As KEI was aware, however, Mr. Marinaccio’s land was between Lapp Road and Lexington Woods. Thus, a water course and drainage easement were needed to traverse Mr. Marinaccio’s land in order to alleviate the drainage problems. Indeed, from the June 9, 2000 meeting, KEI knew that because of its development “there will be more water dumping onto adjoining properties to the north . . . and the town will need a perpetual easement across this property . . . The property to the north to Lapp Road is apparently owned by Paul Marinaccio (4411).” In fact, KEI knew that the “key” to avoiding drainage problems for its development would be the Town’s ability to extend and maintain ditches out to Lapp Road (279, 4434). Nevertheless, although the Town’s official notes indicate 13 that an easement was needed from Mr. Marinaccio in order to connect Lexington Woods to Lapp Road, KEI did not obtain one from him (280-282). D. KEI Submits a Drainage Plan to Gain Approval for the Development of Phase III As part of the approval of Phase III, and in order to remedy the serious drainage problems caused by KEI’s nonconformance with development plans approved on earlier phases of Lexington Woods (436, 437), the Town required KEI to upgrade the existing drainage facilities (441). KEI submitted a drainage plan to the Town, which was subsequently approved based on KEI’s misrepresentations concerning additional water that was going to shed from Phase III after its development (419, 420, 440). The approved plan required that water from the west side of the development would flow into a storm sewer and then to a mitigation pond on the west side of Phase II (421, 909). KEI also represented to the Town that this storm sewer would not be abandoned until Phase III began (422). Additionally, on the south western edge of Mr. Marinaccio’s property, there was an existing man-made ditch that began on KEI’s property, but crossed over to Mr. Marinaccio’s property as the ditch ran north (212-213). As a condition to proceeding with Phase III, KEI was required to “clean out” the ditch, which KEI did with a backhoe (213). 14 E. KEI’s Drainage Plan Misrepresents the Location of a Drainage Ditch in Order to Gain Approval for Phase III In order to gain approval for the development of Phase III, KEI falsely represented to the Town the location of the aforementioned drainage ditch into which a mitigation pond and pipes would direct water on the northeast section of Lexington Woods (378-79). According to the Town Engineer, the survey KEI submitted represented that the ditch was on KEI’s property, not Mr. Marinaccio’s property (379, 383). The Town relied on KEI’s false representations concerning the location of the drainage ditch when it approved KEI’s Phase III development plan (384). However, as the Town later discovered, the ditch, which KEI used to intentionally divert massive amounts of water from its property to Mr. Marinaccio’s, was clearly located on Mr. Marinaccio’s property (385, 386). F. KEI’s Drainage Plan Fails to Comply with Standard Engineering Practices In addition, contrary to standard engineering practices, KEI’s drainage plan did not include any calculations which showed that the drainage ditch (located on Mr. Marinaccio’s property) had the capacity to carry the water that was to be routed into it (911). In fact, the undisputed testimony was that the ditch did not have the capacity to flow the large amount of water that KEI diverted onto Mr. Marinaccio’s land (id). Thus, the excess water flowed over its edges and into the 15 surrounding area, creating a large wetland on Mr. Marinaccio’s property (911, 913). As one of Plaintiff’s experts, Anthony G. Milone, P.E., testified, it is standard engineering practice for a developer or contractor to determine whether the means of conveyance for storm water was sufficient before implementing a drainage plan and installing new drainage structures (910). Mr. Milone further testified that such calculations would have allowed KEI to determine whether the drainage ditch on Mr. Marinaccio’s property had the capacity to carry the large volume of water that was being discharged from the downstream end to an upstream discharge point (910). Nonetheless, KEI’s plan did not include any such calculations. Additionally, KEI’s design of the mitigation pond bordering Mr. Marinaccio’s property, the purpose of which was to retain water generated and prevent it from discharging downstream and flooding properties downstream (917), was insufficient in size to handle the flow of water from the surrounding area (922). Mr. Milone also testified that standard engineering practice for a mitigation pond, such as the one KEI installed adjacent to Mr. Marinaccio’s property, requires a one foot berm, which is added as a safety factor in case the water level exceeds the designed capacity (918). KEI’s design failed to include such a berm (919). Thus, the pond repeatedly overflowed and water was observed 16 on multiple occasions spilling over its banks and flowing to Mr. Marinaccio’s property (604-606, 917, 920, 922). G. KEI Fails to Comply With the Approved Drainage Plan In late 2002, well before construction of Phase III began in 2006, KEI abandoned a drainage pipe on the western part of Phase II (422), which it previously represented would route water to a retention pond located on the western portion of the development (908). Thereafter, for approximately four years years, KEI blatantly failed to comply with and disregarded the approved drainage plan (424, 908-909) and allowed massive amounts of storm water to shed from the west side of Lexington Woods into a mitigation pond in the northeast (424). Instead of diverting the water to a mitigation pond located on the western portion of the property, as required in its development plan (908), KEI rerouted water into a retention pond adjacent to Mr. Marinaccio’s property, which was not designed for the increased volume, and which could not retain it. In order to alleviate the increased volume of water in its retention pond, KEI installed two drainage pipes (608-609, 611) and routed the water into an abandoned farmer’s furrow located on Mr. Marinaccio’s land (232). Worse, the pipes were installed on Mr. Marinaccio’s property (608-609, 611). Additionally, KEI not only misrepresented the location of this “ditch” to the Town in order to 17 gain approval of its drainage plan, it then cleared it out with a backhoe (214-217) and created a berm which prevented Mr. Marinaccio’s land from draining (643), without Mr. Marinaccio’s permission. KEI’s misrepresentations and blatant failure to comply with the approved drainage plan consequently created approximately 37 acres of new and undevelopable wetland on Mr. Marinaccio’s property (1041). Moreover, KEI had a history of failing to comply with the development and drainage plans it submitted to the Town. According to the Town’s Engineer, Joseph Latona, KEI failed to comply with grading plans approved in earlier phases of the development and did not grade the lots per the plans submitted to the Town (436-437). H. Despite Four Decades of Experience as a Developer, Much in the Town, KEI Fails to Secure a Drainage Easement or Permission from Mr. Marinaccio and Violates the Town’s Easement Regulations The owner of KEI, Bernard Kieffer, was a very experienced developer with about 40 years in the business (79). In total, KEI developed about 334 building lots in the Town of Clarence alone and about 430 lots in all (86). KEI was one of the developers of Spaulding Lake in the Town where houses sell for “a million and over a million” (85). Notwithstanding KEI’s four decades of development experience, much in the Town, and the fact that the Town’s official notes indicate 18 that an easement was needed from Mr. Marinaccio in order to connect Lexington Woods to Lapp Road, KEI never obtained one. The Town’s easement regulations, which KEI was required to comply with for 40 years, stated that “where a subdivision is traversed by a watercourse, a drainage way, channel or stream, there shall be provided a storm water easement or drainage right of way conforming to the lines of such watercourse (387).” As the Town’s Engineer testified, this means that where there is water running through a subdivision, easements must be obtained to ensure that storm water exits the subdivision and does not cause flooding (388). Despite this requirement, Mr. Latona testified that he was not aware of anyone, including KEI, getting permission from Mr. Marinaccio to utilize his land to flow water through it (388). Additionally, James Callahan, the Town’s Director of Community Development, testified that it was a Town requirement to have easements in place as part of a development plan (508). KEI, however, with knowledge that an easement was needed (279, 4411, 4434, 6685) and of the Town’s easement regulations, chose to violate them, and instead intentionally diverted large amounts of water on Mr. Marinaccio’s property without an easement or permission. 19 I. KEI Builds a Detention Pond Next to Mr. Marinaccio’s Property With Two 12” Overflow Pipes and Diverts a Massive Amount of Water to His Land KEI’s failure to secure an easement or Mr. Marinaccio’s permission did not stop it from building a detention pond next to Mr. Marinaccio’s property with two 12” overflow pipes that diverted huge amounts of water from Phase III of Lexington Woods to Mr. Marinaccio’s property (189, 227-228). Indeed, KEI began development of Phase III without obtaining the required easement from Mr. Marinaccio and in direct violation of the Town’s easement regulations and its approved drainage plan (287-288, 423-424). Prior to KEI’s installation of the overflow pipes, KEI did not ask Mr. Marinaccio’s permission to flow water on his property (612) and did not inform Mr. Marinaccio that there was a plan to route water onto his property as a part of the development of Phase III (613). Mr. Marinaccio also did not give KEI permission to use his land as a means of conveyance from Lexington Woods to Lapp Road (613). To the contrary, KEI boldly denied any obligation to obtain an easement or permission from Mr. Marinaccio despite the fact that it was necessary for subdivision approval (280). Indeed, before installing the pipes that diverted water onto Mr. Marinaccio’s property, KEI did not determine whether an easement or permission had been obtained (281). 20 At the time, KEI clearly understood that obtaining such an easement was the “key” to solving long term drainage problems (4434, 6685) and that the Town was not able to consent to the use of Mr. Marinaccio’s property without his permission, but he took no action to secure permission or an easement (282). Moreover, Mr. Kieffer testified that obtaining permission before routing water onto Mr. Marinaccio’s property was “not my obligation” (280) despite the fact that KEI owned the abutting property at the time (280) and needed to route water onto Mr. Marinaccio’s land in order to alleviate flooding conditions in Phase II of Lexington Woods and to obtain approval to construct Phase III (280). Nevertheless, KEI installed two 12” overflow pipes on Mr. Marinaccio’s property (608), which, KEI admitted, were intended to divert water onto Mr. Marinaccio’s property (190, 231-233). The pipes achieved their objective (190) and ultimately created 37 acres of new and undevelopable wetland on Mr. Marinaccio’s property (1041). Similarly, as previously mentioned, KEI hired a subcontractor to dredge the “ditch” located on Mr. Marinaccio’s property and dug it out to route water from Phase III to Mr. Marinaccio’s land (214-217). Worse, the excess soil from (888- 891) the unauthorized ditch digging was placed on the east side of the trench, and created a berm, which was adjacent to and, in some places, on Mr. Marinaccio’s 21 land (643, 888-889). The berm prevented water from flowing off Mr. Marinaccio’s property (643). Although during the second trial KEI denied that its subcontractor, Marfurt, “dug out the ditch,” Mr. Kieffer was impeached with his prior trial testimony that Marfurt “dug out the ditch, the 1200 foot long ditch . . . [with] a backhoe (217).” Indeed, despite his testimony in the first trial, Mr. Kieffer incredibly maintained that although a backhoe was used to “clean out” the ditch, weeds were hand picked from a 1200' ditch (218-219). He also incredibly testified that the backhoe was not used for digging, but to “go sideways and knock[ing] some of that stuff down” (219). A jury could have reasonably concluded that this testimony was obviously false and evidence of KEI’s attempts to “cover up” its intentional and unpermitted actions in connection with Mr. Marinaccio’s property. J. Mr. Marinaccio Learns that KEI is Dumping Water onto His Property Without His Permission or an Easement After the overflow pipes were installed on Mr. Marinaccio’s land without his permission or an easement, Ronald Witnauer, an employee of the Town’s highway department, contacted Mr. Marinaccio concerning the cutting of an existing “drainage ditch” on his property (615). Mr. Marinaccio, unaware that a drainage ditch existed on his property, asked that Mr. Witnauer meet him at his property (616), so that Mr. Witnauer could show him where he wanted to cut the ditch. 22 A few days later, Mr. Witnauer met with Mr. Marinaccio on his property and showed him the “drainage ditch,” which was actually nothing more than an abandoned farmer’s furrow (615). More importantly, Mr. Witnauer showed Mr. Marinaccio, for the first time, that KEI had installed two overflow pipes on his land, without his permission or an easement, which were diverting and dumping massive amounts of water onto his property from a nearby mitigation pond (616). Abhorred that KEI was intentionally diverting water to and flooding his land without his permission, Mr. Marinaccio contacted his attorneys to arrange a meeting with the Town Engineer and demanded that KEI immediately stop diverting water onto his property (619). K. KEI Refuses to Stop Diverting Water to Mr. Marinaccio’s Property or Help in any Manner to Alleviate the Serious Flooding Problems It Created Mr. Marinaccio, thereafter, both through his counsel and personally, requested that KEI cease its intentional and unpermitted diversion of water onto his property. When KEI was contacted by Mr. Marinaccio’s counsel about the unlawful drainage to Mr. Marinaccio’s property, he did nothing to stop it or to assist in alleviating the flooding (282-288, 623). Similarly, Mr. Marinaccio personally called KEI pleading for assistance with the flooding problem (622-623). In response, Mr. Kieffer, knowing that KEI 23 never obtained either permission or an easement from Mr. Marinaccio, refused to help and advised Mr. Marinaccio that the water wasn’t “his problem” (623). Mr. Marinaccio’s counsel then sent a letter to KEI requesting assistance with the flooding problem (623). Mr. Kieffer admitted receiving the letter from Mr. Marinaccio’s counsel asking for KEI’s help with flooding problems that were being caused by the drainage pipes (282-288), but KEI did nothing to alleviate the flooding conditions (288). Thus, given three separate opportunities to stop its unlawful diversion of water onto Mr. Marinaccio’s property and/or help alleviate the flooding it created, KEI boldly and intentionally refused to do so. L. KEI Continues to Divert Storm Water onto Mr. Marinaccio’s Property, and Causes a Serious Danger to the Health, Safety and Welfare of the General Public After Mr. Marinaccio demanded that KEI cease it unpermitted diversion of water onto his property, KEI chose to continue dumping massive amounts of water on Mr. Marinaccio’s land and exacerbated the flooding problem it had already created. KEI’s continued and intentional diversion of storm water (4966) onto Mr. Marinaccio’s property caused ponding (904), in many places deeper than two feet (915), as well as marshy and swamp-like conditions. These conditions, which were 24 the direct result of KEI’s intentional conduct, resulted in an extraordinarily high population of mosquitoes near Mr. Marinaccio’s residence (982) and posed a serious health hazard to the general public, as well as Mr. Marinaccio’s friends and family (343). Indeed, Mr. Marinaccio’s daughter testified that when she and her children visit they are forced to spend their time inside in order to avoid being attacked by mosquitoes (982-983). As the Town’s Engineer testified, the Town attempts to minimize flooding, ponding and marshes because they can create adverse health conditions (342). More specifically, ponding water, which KEI intentionally created on Mr. Marinaccio’s property, causes mosquitoes to breed, which can carry the West Nile virus and can actually “kill people” according to the Town Engineer (343). Plaintiff’s wetland expert also testified that the state health department does not allow a residence within a hundred feet of state-regulated wetlands because of West Nile virus concerns, a mosquito borne disease (1017-1018). Additionally, as the result of KEI’s flooding of Mr. Marinaccio’s property, Mr. Marinaccio’s driveway was inundated with frogs from early spring to early fall (980-981). Mr. Marinaccio’s daughter has observed between thirteen and fifteen frogs on his driveway at one time (980). This newfound frog infestation on Mr. Marinaccio’s land is a serious danger to his health, safety and welfare because he is petrified of frogs (615, 620) and has been since the age of three (626). Indeed, he is 25 regularly forced to call his daughter to remove them from his driveway (980) before he can exit his truck or enter his home (Id). There have also been multiple occasions in which Mr. Marinaccio has been trapped in his garage and unable to exit his truck because of his frog phobia (981). When this occurs late at night, Mr. Marinaccio cannot even enter his residence and is forced to drive to his daughter’s house and spend the night there (981) until the frogs are removed by friends and family the next day. As such, the conditions created by KEI’s intentional and continued diversion of storm water onto Mr. Marinaccio’ property caused significant and ongoing danger to the health, safety, and welfare of the general public, including Mr. Marinaccio, his children and grandchildren. M. The First Trial Based on the above, this instant action was commenced in 2006 against KEI and the Town. The case was bench tried for 15 days in January and February 2009 before former Justice Joseph Makowski. Proof concluded on February 26, 2009 (4367). On or about February 23, 2009 news organizations reported that Judge Makowski was resigning from the bench within the next several days. At the conclusion of proof, Mr. Marinaccio requested a directed verdict and asked former Judge Makowski to render his decision expeditiously (4367-4371). 26 Instead, Judge Makowski suggested that the parties might want to order the 15 day long transcript and submit proposed findings of fact (4379). Mr. Marinaccio waived that right (4379), but the court would not accept the waiver (4383). KEI insisted on that right (4379). Consequently, the matter was adjourned and subsequently declared a mistrial due to the lack of a decision from Judge Makowski, who “resigned” his position after offering to serve as a private arbitrator in this case (5009). The offer was rejected. N. The Second Trial The second trial was a 12 day jury trial held before Justice Frederick J. Marshall. After the close of proof, on September 9, 2011 at approximately 12:30 p.m. (1751), Judge Marshall, without any specific objections from any party, including KEI, read the agreed upon jury instructions (1752). The trial court correctly charged the jury with the following, without objection, concerning KEI’s purported defense that it followed standard engineering practices: If you find that Defendants are liable for unlawful diversion of surface water on Plaintiff’s property, then Defendants cannot escape liability on the theory that is actions were in conformance with good engineering practices. Thus, the fact that the subdivision’s design was allegedly in accordance with good engineering practices is not sufficient to remove liability of Defendants if you find that their acts were in derogation of Plaintiff’s rights as a property owner. 27 Moreover, the fact that the Defendant Kieffer Enterprises claims that drainage work was performed with the approval of the Defendant Town of Clarence, and even to the satisfaction of the Defendant Town of Clarence’s Engineering Department, does not itself render the Defendant Kieffer Enterprises immune from liability to Plaintiff, if the Defendant Kieffer Enterprises’ conduct was a cause of Plaintiff’s alleged property damage due to unlawful water diversion (1773, 7059) Additionally, Judge Marshall correctly instructed the jury, again without objection, that Mr. Marinaccio had no duty to maintain his land. Specifically, he instructed the jury that: Plaintiff in this case possessed no duty to keep any water course, ditch, or furrow on his property free and clear from any debris which may have accumulated there in order to assist the flow of water across his property. Moreover, Plaintiff did not possess a duty to alter his property in any way which may have assisted the flow of water across his property (1783, 7058). Judge Marshall also charged the following to the jury, without any objection, with respect to KEI’s liability for punitive damages: This is my charge to you on punitive damages. It applies only with respect to the claim against Kieffer. In addition to awarding damages to compensate the plaintiff for his damages, you may, but are not required to award punitive damages as against defendant Kieffer Enterprises Incorporated only if you find that the acts of the defendant Kieffer Enterprises that caused the conditions complained of were wanton and reckless or malicious. Punitive damages may be awarded for conduct that represents a high degree of immorality and shows wanton dishonesty as to imply a criminal indifference to civil obligations. The purpose of punitive damages is not to compensate the plaintiff, but to punish the defendant for wanton, and reckless, or malicious acts and thereby to discourage the defendant and other companies from acting in a 28 similar way in the future. An act is malicious when it is done deliberately, with knowledge of the plaintiffs’ rights, and with the intent to interfere with those rights. An act is wanton and reckless when it demonstrates - demonstrates conscious indifference and utter disregard for its effect upon the health, safety and rights of other. If you find that the defendant Kieffer Enterprises’ acts were not wanton and reckless or malicious, you need proceed no further in you deliberations in this issue On the other hand, if you find that the defendant Kieffer Enterprises’ actions were wanton and reckless or malicious, you may – you may award plaintiff Paul Marinaccio, Sr. punitive damages (1780-1781). Of note, all three of the above jury instructions were read verbatim from Mr. Marinaccio’s proposed request to charge, without objection from KEI. Jury deliberations began at 1:43 pm (1793), but the jury asked for more instruction at 2:25 pm concerning the distinction between negligent and intentional nuisance (1795-96). The trial court re-read its instructions without objection from KEI (1799). The jury returned to deliberate at 2:45 pm (1799). At 3:38 pm, the jury asked for a definition of “wanton and reckless” (1799). The court suggested that it re-read the entire jury instruction for punitive damages (1800). Again, KEI was given the opportunity to object to the charge and did not. Id. The court again read the punitive damage instruction to the jury (1801-1802). The jury returned to deliberate at 3:43 pm (1802). At 3:52 pm, the jury asked again for a definition of wanton. All parties agreed, without objection, that the 29 court should read to the jury the definition that is in the PJI charge, which says than an act is wanton and reckless where it demonstrates conscious indifference (1805). When the jury returned its verdict, the trial court concluded that a portion of it was inconsistent as a matter of law concerning the jury’s conclusions that KEI acted both negligently and intentionally (1810). The trial court asked the jury to address the inconsistency without objection as to the instructions given (1810- 1811). The jury then returned a verdict against KEI that it substantially interfered with Mr. Marinaccio’s use of his property by intentionally diverting water to it, which was a substantial factor in damaging the property (1813-1814, 4966). Equally important, the jury found that the conduct of KEI was either wanton and reckless or malicious (1816-1817, 4966) and, as such, warranted punitive damages. The trial court then instructed the jury on what it should consider in determining the amount of punitive damages, and even suggested that “none” could be awarded (1884-1886). There were no objections to the instructions (Id.). After deliberating, the jury awarded $250,000 against KEI for its wanton and reckless or malicious conduct (1886-1887, 4976). 30 O. KEI Appeals to the Fourth Department On November 25, 2009, KEI filed a notice of appeal from the judgment of the Supreme Court, Erie County (Hon. Frederick J. Marshall) awarding punitive damages against KEI, entered November 24, 2009, to the Appellate Division, Fourth Judicial Department (“Fourth Department”) (4-5). P. Mr. Marinaccio Moves to Dismiss KEI’s Appeal Because it “Omits” the Town’s 1995 Survey from the Record, the Only Conclusive Proof of the Location of a Purported Easement on His Property On April 28, 2011, the trial court entered an order settling the Record, which included Court Exhibit “4” –“Letter Casilio to Cardarelli dated 3/2/95 and Letter and Survey Casilio to Cardarelli dated 4/24/95.” As discussed below, the subject survey was the only proof submitted at trial that conclusively showed the location of any easement on Mr. Marinaccio’s property. However, as the survey showed, this easement was located on the east side of his property, not the west side as KEI now claims (4950). Despite the trial court’s explicit instruction that the April 24, 1995 survey be included in the Record, KEI “omitted” it. It was not until Mr. Marinaccio filed a motion to dismiss KEI’s appeal, on September 28, 2011, that KEI finally agreed to properly include the absent survey in the Record at page 4950a. 31 On May 2, 2011, more than seventeen months after KEI filed its Notice of Appeal, and after three extensions, KEI finally perfected its appeal to the Fourth Department. Q. KEI Loses its Appeal of the Punitive Damages Award to the Fourth Department On December 30, 2011, the Fourth Department released its Memorandum and Order (Marinaccio, 90 A.D.3d 1599), which correctly affirmed the judgment entered by the trial court concerning the jury’s award of punitive damages to Mr. Marinaccio. Of note, there was a “dissent” by two justices on a question of fact, which divests this Court of jurisdiction to hear this appeal. (See Plaintiff’s Jurisdictional Statement). The dissent was limited to the issue of Mr. Marinaccio’s punitive damages award (Id. at 1603) and did not vote to modify the opinion of the majority on the numerous other unpreserved issues discussed in KEI’s brief to this Court. (Id.). 1. The Fourth Department Correctly Determines that the Punitive Damages Award Was Supported by Legally Sufficient Evidence The Fourth Department correctly stated that “[t]o establish its entitlement to relief on its legal insufficiency contention, KEI had to [demonstrate] ... ‘that there 32 [was] simply no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial. Id. at 1600 (citations omitted).’” Applying this standard, the majority concluded that “[h]ere, there is a valid line of reasoning supporting the jury’s conclusion that KEI’s conduct was sufficiently egregious to warrant an award of punitive damages. Id.” In so, holding, the court noted that the evidence presented at trial established that, among other things: (1) “Prior to the development of Phase III … there were drainage problems at the subdivision.” Marinaccio, 90 A.D.3d at 1600-01; (2) “The Town and [KEI] knew that, as a result of the additional construction in the subdivision, “there [would] be more water dumping onto adjoining properties to the north and west,” i.e., in the area of plaintiff's property and the Town noted that it would “contact [Mr. Marinaccio] regarding an easement along his west property line.” Id. at 1601; (3) “KEI hired a contractor to clean [a shallow furrow that traversed Mr. Marinaccio’s property] both by backhoe and by hand as a condition of proceeding with Phase III.” Id.; (4) “The parties do not dispute that the Town and [KEI] did not obtain Mr. Marinaccio’s permission to allow water to flow onto [Mr. Marinaccio’s] 33 property, and Phase III was approved, subject to several conditions designed to facilitate drainage in the area, on June 21, 2000.” Id.; (5) “During Phase III construction, [KEI] built a pond next to [Mr. Marinaccio's] property, which was fed by storm sewers and drained by two 12– inch pipes that, according to [KEI], were intended to release water into the furrow on [Mr. Marinaccio's] property.” Marinaccio, 90 A.D.3d at 1601; (6) “[T]he outflow pipes were installed approximately one foot inside [Mr. Marinaccio’s] property line.” Id.; (7) “[KEI] routed more water from Phase III to [Mr. Marinaccio’s] property than was called for by its drainage plans.” Id.; (8) “After the construction of Phase III, the nature of [Mr. Marinaccio’s] property changed. [Mr. Marinaccio’s] wetlands consultant testified at trial that he estimated that there were only six acres of wetland on Mr. Marinaccio's property in 2001, and that the wetland subsequently expanded to the point that his property contained 19.5 acres of wetland in 2006; 24.94 acres of wetland in 2008; and 30.23 acres of wetland by 2009.” Id.; and (9) “[M]igrating water on Mr. Marinaccio's property was blocked by a berm, and the growth of the wetland on Mr. Marinaccio's property was due in part to the berm and in part to the presence of more water on the site.” Id. Mr. Marinaccio's wetlands consultant ‘observed a berm on part of his property in 2006 34 … and characterized as about 500 or 600 feet long. Mr. Marinaccio's wetlands consultant believed that the berm was the result of ditch maintenance several years earlier, at which point spoils from the furrow were placed on the east side of the furrow, i.e., on the side of the furrow opposite the subdivision.” Id. As such, the Fourth Department properly concluded that the foregoing evidence was legally sufficient to allow the jury to conclude that “KEI knowingly and intentionally disregarded plaintiff's property rights in a manner that was either wanton, willful or reckless,” and, as such, warranted punitive damages. Id. at 1601-1602. 2. The Dissent Makes New and Erroneous Factual Findings, Which Contravene the Record, and Improperly Substitutes Its Conclusions for Those Made by the Jury In holding that punitive damages were somehow not warranted, the Dissent made new findings of fact that were incorrect, unsupported by the Record and contrary to those made by the jury. For example, the Dissent erroneously concluded that “the record reflects that KEI developed Phase III in accordance with all of the Town's requirements.” Marinaccio, 90 A.D.3d at 1604. However, as stated above, even though the Town’s easement regulations required an easement where a watercourse traverses a parcel (387), KEI did not receive or obtain an easement from Mr. Marinaccio to utilize his land to flow 35 water through it (388). KEI also did not comply with the drainage plan it submitted to the Town, in order to gain approval for the development of Phase III. Id. at 1601; see also record at 908-909. Additionally, the Dissenting Justices made a new and incorrect factual determination that “Kieffer testified that it was not his intent to interfere with the use of plaintiff's property, and the record discloses no evidence to the contrary.” Id. Despite this self-serving statement from Mr. Kieffer, that the jury was free to, and did, reject, he testified that KEI installed two pipes to intentionally divert water from the retention pond directly into a ditch on Mr. Marinaccio’s property without determining whether the ditch was large enough to carry the water off the property (190). Mr. Kieffer also admitted that the very purpose of installing the pipes was to allow the water to flow from the pond into the ditch on Mr. Marinaccio’s property (231). Equally important, the jury determined, as shown on the verdict sheet, that KEI “intentionally cause[d] water to enter upon Paul Marinaccio Sr.’s property (4965).” Most importantly, there was evidence that KEI was contacted 3 times with requests from Plaintiff and his counsel to cease the water diversion but KEI refused to do anything (282-288; 622-623). Nonetheless, based on new and incorrect factual determinations, which were contrary to those of the jury, the Dissenting Justices erroneously concluded that “punitive damages are not justified 36 on the record because the harm in this case—the flooding of [P]laintiff’s property—was not intended by [KEI].” Marinaccio, 90 A.D.3d at 1604. 3. The Dissenting Justices Apply a Legal Standard Contrary to the Law of this Case as It Was Charged To the Jury Contrary to the unopposed law of this case as read to the Jury without objection, (1780), the Dissenting Justices also applied the incorrect legal standard in concluding that punitive damages were not warranted. In particular, the Dissenting Justices stated that: (i) Punitive damages are awarded not for the unintended result of an intentional act, but for the conscious disregard of the rights of others or for conduct so reckless as to amount to such disregard. Marinaccio, 90 A.D.3d at 1604; (ii) Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or malice, or a fraudulent or evil motive on the part of the defendants. Id. at 1603; and (iii) Punitive damages may be sought when the wrongdoing was deliberate and has the character of outrage frequently associated with crime. Id. Further, the Dissent incorrectly stated that to warrant an award of punitive damages there must be sufficient “evidence in the record that [KEI] was motivated by maliciousness or vindictiveness or that [KEI] engaged in . . . outrageous or oppressive intentional misconduct.” Id. at 1604. None of the above-referenced 37 punitive damages “standards,” however, were charged to the jury as to whether KEI’s conduct warranted punitive damages. Indeed, the trial court charged the jury with separate punitive damages charges concerning (1) KEI’s liability (1780), which is the subject of this appeal, and (2) the amount of such damages (1884), a non-issue in the instant appeal and the prior appeal to the Fourth Department. The liability charge, which KEI did not oppose, stated that punitive damages are warranted where “the acts of the defendant . . . that caused the conditions complained of were wanton and reckless and/or malicious.” The Dissent failed to apply this legal standard. Instead, the Dissent incorrectly applied the trial court’s jury charge concerning the amount of punitive damages (1884), which was not given until after the jury already determined that KEI’s conduct was “either wanton or reckless and malicious (4966)” and, as such, warranted punitive damages. In so doing, the Dissent applied a standard contrary to the law of this case and erroneously concluded that punitive damages were not warranted because Mr. Marinaccio failed to demonstrate that “KEI was motivated by maliciousness or vindictiveness or that KEI engaged in such ‘outrageous or oppressive intentional misconduct to warrant an award of punitive damages.” Id. at 1604. However, this was clearly not the standard that was given to the jury without objection from KEI. 38 R. KEI Appeals from the Fourth Department’s Memorandum and Order On February 2, 2012, KEI filed a notice of appeal, pursuant to CPLR 5601(a), from the Fourth Department’s December 30, 2011 Memorandum and Order, based on the dissent of two Justices of the Fourth Department on a purported “question of law.” See supra, Jurisdictional Statement. ARGUMENT POINT I THE PUNITIVE DAMAGES AWARD SHOULD BE AFFIRMED BECAUSE IT IS SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE UNDER THE CHARGE THAT WAS READ TO THE JURY WITHOUT KEI’S OBJECTION “For a court to conclude as a matter of law that a jury verdict is not supported by sufficient evidence it must . . . conclude that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial.” Cohen at 499. “Similarly, in any case in which it can be said that the evidence is such that it would not be utterly irrational for a jury to reach the result it has determined upon, and thus a valid question of fact does exist, the court may not conclude that the verdict is as a matter of law not supported by the evidence.” Id. 39 In the instant case, KEI argues that there was purportedly insufficient evidence to support the jury’s conclusion that its conduct was sufficiently egregious to warrant punitive damages. Accordingly, pursuant to the law of this case, KEI must demonstrate that there did not exist a question of fact, which was properly submitted to the jury, as to whether its act of intentionally flooding Mr. Marinaccio’s property that created over 37 acres of new and uninhabitable wetland “was wanton and reckless and/or malicious.” A. KEI Did Not Object to the Punitive Damages Jury Instructions at the Time of Trial and, as such, They are the Law of this Case Despite numerous opportunities to object to the trial court’s punitive damages jury instruction, KEI failed to make any such objection during trial. Plaintiff requested a punitive damage charge (7058) and KEI did not object to the charge (1750-1751). Rather, KEI only joined in the Town’s general objection of the “Court’s charge to the extent that it fails to conform to [its] request to charge or contains any charges that are in addition to [its] request to charge (1750).” In fact, KEI asked that the punitive damages charge be read again when the jury questioned the definition of “wanton and reckless” (1800-1802). The trial court did so again without any objection. Indeed, when the trial court asked KEI if it had any problem with re-reading the punitive damages charge, its response was “that’s fine judge (1800).” 40 Thereafter, the jury had another question about the definition of “wanton” (1803). The court suggested that it read the “definition that is in the PJI charge, which says an act is wanton and reckless when it demonstrates conscious indifference (1804).” KEI agreed to use the same definition as found in the PJI and stated “that’s fine Judge. That’s fine (1804).” KEI did not object to the law given for punitive damages and even made suggestions as to what the court should re- read. Thus, it is the law of this case and KEI waived its argument that punitive damages should not be awarded because the Defendant agreed that the charge should be read. Brown v. Du Frey, 1 N.Y.2d 190, 196, 135 N.E.2d 469 (1956); Harris v. Armstrong, 64 N.Y.2d 700, 474 N.E.2d 1191 (1984); Titlebaum v. Loblaws, Inc., 75 A.D.2d 985, 429 N.Y.S.2d 91 (4th Dept. 1980). Nonetheless, KEI now attempts to deflect this court’s attention from the agreed upon and unobjected to punitive damages instruction by reciting its purported “applicable legal standard.” See Brief for Defendant-Appellant, at p. 30- 32. The cases cited by KEI, although potentially pertinent at the trial level, have no bearing on the outcome of this appeal. The law of this case was determined before the trial court at which time KEI was given multiple opportunities to object if it believed such instructions were incorrect or improper. It failed to do so. Thus, on appeal, KEI must show that there was legally insufficient evidence to support the jury’s award of punitive damages based on its wanton and reckless or malicious 41 conduct in connection with the intentional diversion of storm water onto Mr. Marinaccio’s property. B. There is a Valid Line of Reasoning to Support the Jury’s Conclusion that KEI’s Wanton and Reckless and/or Malicious Conduct Warranted Punitive Damages Here, there is no question that the evidence presented by Mr. Marinaccio at trial supported a finding of either “malicious” conduct or “wanton and reckless” conduct as those terms were defined to the jury. As the trial court charged the jury, “[a]n act is malicious when it is done deliberately with knowledge of Plaintiff’s rights and with an intent to interfere with those rights (1780).” An act is “wanton and reckless” when it demonstrates “conscious indifference and utter disregard to its effects upon the health, safety and rights of others (Id).” The evidence upon which the jury reasonably concluded that KEI should be held liable for punitive damages and which presented, at a minimum, a question of fact, which was properly submitted to the jury, is articulated above (See supra Statement of Facts, at pp. 10-25), and includes, among other things, that: 42 (1) KEI refused to stop diverting water to Mr. Marinaccio’s property or provide Mr. Marinaccio with any assistance to rectify the serious flooding problem it created Here, it is undisputed that: (a) Mr. Marinaccio’s counsel contacted KEI and requested assistance with the flooding problem KEI created on Mr. Marinaccio property (282-283, 623); (b) Mr. Marinaccio personally contacted KEI and requested that it stop diverting water to his property (622-623); and (c) Mr. Marinaccio’s counsel sent a letter to KEI requesting help with the flooding and demanding that it cease its diversion of storm water on his property (282-288, 623). However, KEI continued to route water to Mr. Marinaccio’s land and refused to help Mr. Marinaccio in any way. Instead, on notice of the widespread flooding problems it was creating on Mr. Marinaccio’s property, KEI deliberately and maliciously continued its unpermitted diversion of storm water. According to KEI’s owner, Bernard Kieffer, its intentional diversion of massive amounts of water to Mr. Marinaccio’s property without his permission or an easement “wasn’t his problem (623).” Based on these facts alone, the jury could reasonably conclude that KEI’s intentional diversion of water on Mr. Marinaccio’s land was done “with knowledge of [Mr. Marinaccio’s] rights and intended to interfere with those rights” or that this conduct was “wanton and reckless.” 43 (2) KEI’s intentional diversion of water on Mr. Marinaccio’s property caused a serious danger to the health, safety and welfare of the general public, as well as Mr. Marinaccio’s friends and family Moreover, KEI’s: (a) continued diversion of water to Mr. Marinaccio’s property, despite his protestations and without his permission or an easement; and/or (b) failure to provide any assistance to remedy the serious flooding problems it created, caused a serious danger to the general public and demonstrated KEI’s conscious indifference and utter disregard to its effects upon the health, safety and rights of others. As a developer with nearly forty years of experience (79, 85, 86), much in the Town, KEI was required for four decades to comply with the Town’s regulations, which minimize flooding, ponding and marshes because those conditions can create health problems (342). As stated by the Town’s engineer and Mr. Marinaccio’s wetlands expert, such conditions serve as a breeding ground for mosquitoes, which can carry the West Nile virus and actually kill people (343, 1017). Nonetheless, KEI, with explicit knowledge of the flooding and ponding it continued to create on Mr. Marinaccio’s property (904, 915) and the dangers associated therewith, did nothing to rectify the problem, after it undisputedly knew about them. KEI continued to dump water onto Mr. Marinaccio’s property and 44 purposely exacerbated the breeding of mosquitoes, a serious health hazard. Indeed, as Mr. Marinaccio’s daughter testified, the mosquito population is so high on Mr. Marinaccio’s property and near his residence that she and her children spend their time inside when they visit, in order to avoid being attacked (983). (3) Despite four decades of development experience, much in the Town, KEI violated the Town’s easement regulations and intentionally diverted water to Mr. Marinaccio’s property without an easement or his permission Based on its vast experience as a developer in the Town, KEI was aware or should have been aware that it needed a drainage easement or a landowner’s permission in order to divert water onto his property. In particular, KEI was aware from its meetings with Town officials that a perpetual easement was needed across Mr. Marinaccio’s property (4411) because there would be more water dumping onto adjoining properties to the north, i.e. Mr. Marinaccio’s land, in connection with the further development of Lexington Woods. KEI also knew that the “key” to avoiding additional drainage problems for its further development of Lexington Woods would be the ability to extend and maintain ditches out to Lapp Road (279, 4434). However, because Mr. Marinaccio’s land was between Lapp road and Lexington Woods, a water course and drainage easement were needed to traverse Mr. Marinaccio’s land and to alleviate serious drainage issues. 45 Nonetheless, with express knowledge of Mr. Marinaccio’s ownership of the adjacent parcel and his rights as a landowner, KEI deliberately interfered with those rights. It is undisputed that KEI failed to follow the Town’s drainage easement regulations (387, 388, 508) and to secure an easement or Mr. Marinaccio’s permission (280-281, 612) when it intentionally diverted storm water from a retention pond it owned, through two 12” outlet pipes it installed on Mr. Marinaccio’s land (608), and into a “drainage ditch” located on Mr. Marinaccio’s land, which it “dredged” using a backhoe (217), without Mr. Marinaccio’s permission. In so doing, KEI not only consciously and knowingly violated Mr. Marinaccio’s property rights, but also violated the Town’s easement regulations, which required that “where a subdivision is traversed by a watercourse, a drainage way, channel or stream, there shall be provided a storm water easement or drainage right of way conforming to the lines of such watercourse (387).” Simply put, where there is water running through a subdivision, that there must be easements provided through the same course of the ditch or waterway (388). No such easement was secured by KEI. Rather than follow the Town’s regulations and secure the required easement, KEI deliberately and intentionally interfered with Mr. Marinaccio’s property rights, and diverted water on Mr. Marinaccio’s land without his permission. 46 (4) KEI misrepresented the location of and dug out a “drainage ditch” located on Mr. Marinaccio’s property without his permission in order to flow water on his land and gain approval for Phase III development from the Town During the approval process for Phase III development, KEI misrepresented the location of a “drainage ditch,” which it later dug out and used to re-route water from Lexington Woods onto Mr. Marinaccio’s property. More specifically, KEI submitted a survey to the Town that represented that the aforesaid “drainage ditch” was located in Lexington Woods, not Mr. Marinaccio’s property (378-379). However, this “drainage ditch,” which was actually an abandoned farmer’s furrow, was clearly located on Mr. Marinaccio’s land. (385-386). The Town relied upon KEI’s false representations when it approved KEI’s Phase III development plan (384). KEI then used its misrepresentation to Mr. Marinaccio’s detriment and deliberately disregarded his property rights when it hired a subcontractor to dig out the “drainage ditch” with a backhoe (214-217). Without Mr. Marinaccio’s permission, KEI’s subcontractor dredged the ditch and placed the spoils from the unauthorized excavation on its east side, which created a berm and consequently exacerbated the flooding problems KEI had already created on Mr. Marinaccio’s land. Indeed, KEI routed water from an improperly designed mitigation pond located adjacent to Mr. Marinaccio’s property, into two outlet pipes it installed on 47 Mr. Marinaccio’s land, and then into the dredged “drainage ditch,” all without permission. (5) KEI failed to comply with the approved drainage plan it presented to the Town After KEI gained approval of Phase III based on its misrepresentations to the Town, it then blatantly failed to comply with the approved drainage plan. In connection with the approval of Phase III, KEI represented that it would route water from the western portion of Phase II, through a storm sewer and into a retention pond located on the western part of the property away from Mr. Marinaccio’s property (421, 909). According to the approved drainage plan, this storm sewer was not to be abandoned until KEI constructed Phase III in 2006 (422). Nonetheless, KEI abandoned the storm sewer in late 2002 and for approximately four years, deliberately failed to comply with and disregarded the approved drainage plan (424, 908). Contrary to the approved development and drainage plan (908), KEI’s actions allowed massive amounts of storm water to shed from the west side of Lexington Woods into the mitigation pond in the northeast that routed water to Mr. Marinaccio’s land, despite the fact that the pond was not designed to handle this increased flow of water (424). In order to alleviate the increased volume of water in its retention pond, KEI then intentionally installed two drainage pipes on Mr. 48 Marinaccio’s property (608, 609, 611) and routed the water into a “drainage ditch” located on Mr. Marinaccio’s land (232). KEI’s misrepresentations and blatant failure to comply with the approved drainage plan subsequently created approximately 37 acres of new and undevelopable wetland on Mr. Marinaccio’s property. (6) KEI failed to comply with standard engineering practices In addition to KEI dredging a “drainage ditch” on Mr. Marinaccio’s property without his permission, KEI also failed to determine whether the “ditch” even had the capacity to carry the volume of water that was being discharged (910). As plaintiff’s expert testified, standard engineering practice is to determine whether the means of conveyance for storm water are sufficient before implementing a drainage plan and installing new drainage structures (1041). Nonetheless, KEI failed to conduct these calculations, which, among its other wanton and reckless and/or malicious acts, caused the flooding of Mr. Marinaccio’s property (910). KEI also failed to properly construct the mitigation pond that bordered Mr. Marinaccio’s property. Plaintiff’s expert testified that standard engineering practice for a mitigation pond requires a one foot berm around the edge of the pond, which is added as a safety factor in case the water level exceeds the designed capacity (918). KEI’s design failed to include this safety factor (919) and, as such, the pond 49 repeatedly overflowed and spilled over its banks (917, 922) onto Mr. Marinaccio’s property. Moreover, the size of KEI’s mitigation pond was insufficient to handle the flow of water from the surrounding area (922). Thus, the pond failed to serve its designated purpose, i.e. to retain water and prevent it from discharging and flooding properties downstream of it such as Mr. Marinaccio’s (917). Indeed, KEI’s failure to adhere to standard engineering practice, despite its contrary assertions (See KEI’s Brief at p. 54-56), clearly demonstrates its conscious and utter disregard for the rights of Mr. Marinaccio and surrounding landowners to Lexington Woods. (7) KEI owned the mitigation pond, which overflowed on Mr. Marinaccio’s property Further, during the 2009 trial, Mr. Kieffer admitted that he still owned lot 4 in Phase III (191). The improperly designed mitigation pond, from which the two outflow pipes route water onto Mr. Marinaccio’s property, is located in KEI’s lot 4 (191). Thus, KEI admitted owning the pond and pipes that caused the flooding on Mr. Marinaccio’s land. Given these facts, a jury could reasonably conclude that punitive damages were warranted under the law as it was charged to them without objection from KEI. 50 POINT II THE EASEMENT AFFIRMATIVE DEFENSE WAS PROPERLY PRECLUDED A. The Fourth Department Properly Concluded that the Subject Easement Was Irrelevant to this Case Based on Proof in the Record The Fourth Department correctly found that “based on a land survey prepared by the Town in 1994 upon which Mr. Marinaccio relied upon in purchasing his property in 1995, the easement was shown to be on the east side of Mr. Marinaccio’s property, i.e., the opposite side of the property where KEI drained water onto that land; and thus the easement is irrelevant.” Marinaccio, 90 A.D.3d at 1602. (emphasis added). Additionally, to the extent that the Fourth Department made a factual determination that there was as easement on the east side of the property, and not the west side, as KEI contends, said finding is not reviewable by this Court. See New York Const., Art. VI, § 3 (“jurisdiction of the court of appeals shall be limited to the review of questions of law except where . . . the appellate division, on reversing or modifying a final or interlocutory judgment in an action or a final or interlocutory order in a special proceeding, finds new facts and a final judgment or a final order pursuant thereto is entered”) (emphasis added). Moreover, the fact that the only purported easement was located on the east side of Mr. Marinaccio’s property is clearly supported by the Record. Although 51 KEI incorrectly claims that “all authenticated proof” shows the easement on the west side of the property, Court Exhibit “4,” which included the Town’s 1994 survey of the subject property, conclusively showed the location of an easement on the east side of Mr. Marinaccio’s property (4950a). Moreover, the Town’s official notes acknowledged that a perpetual easement across Mr. Marinaccio’s property was needed in order to alleviate drainage problems in Phase II (4411). Indeed, KEI attended this meeting (4411) and was undoubtedly aware that there was no such easement on the west side of the property. However, KEI now chooses to ignore the Town’s official notes which were submitted into evidence during the trial without objection. On the other hand, KEI did not establish that there was any easement located on the west side of Mr. Marinaccio’s property and failed to offer the trial court a survey that plotted the precise location of its alleged easement. Hence, the trial court and the Fourth Department’s determination that said easement was irrelevant was not error as a matter of law. Nonetheless, KEI speciously and disingenuous claims, without any support in the Record, that “there was no land survey prepared by the Town in 1994” and that Mr. Marinaccio relies on an “altered copy of a September 16, 1989 survey bearing a re-survey date of April 12, 1994.” See KEI brief, at p.42. Shockingly, KEI fails to offer a single Record cite in support for it inflammatory, unwarranted 52 and scurrilous accusations that Mr. Marinaccio somehow altered the Town’s survey that KEI did not object to as a court exhibit at the time of trial. Equally important, KEI “omitted” the survey from the Record before the Fourth Department, and contravened the trial court’s explicit order that it was to be included. Indeed, it was not until Mr. Marinaccio moved to dismiss KEI’s appeal based on its failure to submit a complete record that KEI finally include the subject survey in the Record. KEI also misinforms this Court that Mr. Marinaccio only submitted the letter from Anthony Cardarelli to Town Attorney Casilio, dated March 3, 1995, and not the survey, as evidence during the trial. Mr. Marinaccio, however, respectfully refers the Court to page 142 of the Record in which Plaintiff’s counsel stated: Judge might I ask that we add a court exhibit. I would like to [add], as Court Exhibit [4] a March 2, 1995 letter from Mr. Casilio to Mr. Cardarelli, an April 24, 1995 letter from Town Attorney Casilio to Mr. Cardarelli, along with the attached survey that was included. (emphasis added) The Court then asked KEI’s counsel if it had any objection. He responded “no objection.” (Id.) Thus, KEI’s arguments concerning the survey are not only specious and disingenuous, but unpreserved, as it had no objection to its admission during the trial. 53 B. The Easement Affirmative Defense Was Not Pled and was Properly Precluded Because it Caused Great Surprise KEI’s argument that the trial court’s preclusion of the subject alleged easement constitutes reversible error lacks merit, as both the trial court and the Fourth Department found. Indeed, the trial court refused to permit KEI to advance its belated easement defense because it failed to plead it, despite the fact that KEI had documents in its possession which revealed the alleged easement. According to the trial court: [I’m] looking at the fairness of this, too, as well as the legalities of it, but to require a third trial I think would eliminate anyone’s faith in the - - in the system. We have to proceed with this matter. I am not going to allow a third trial. The motion for a mistrial is denied. And the motion to preclude the use of any evidence that would show an easement over the property for drainage is granted. . . . We have rules of pleading. We have rules of discovery. And to say that we’re gonna throw all those rules out the window simply because we want to make sure that we’ve got every single fact down, I think turns the law on its ear (162-163). In fact, although a Fourth Amended Complaint was served, (5892) KEI did not answer any of its allegations whatsoever. Thus, KEI not only failed to plead any affirmative defenses, it also failed to even interpose any answer to the Fourth Amended Complaint. Accordingly, the trial court correctly ruled that the easement affirmative defense could not be asserted for the first time at the time of trial. 54 Moreover, several appellate division decisions refer to easement as an affirmative defense. See e.g., Braman v. Rochester Gas & Elec. Corp., 54 A.D.2d 174, 388 N.Y.S.2d 407 (4th Dept. 1976) (court refers to dismissed easement defense as an “affirmative defense”); Keinz v. Niagara Mohawk Power Corp., 41 A.D.2d 431, 343 N.Y.S.2d 963 (4th Dept. 1973) (Defendant should be allowed to prove pleaded “affirmative defense” of easement); Chlystun v. Kent, 185 A.D.2d 525, 586 N.Y.S.2d 410 (3d Dept. 1992) (easement defense did not warrant setting aside jury verdict on trespass claim because, among other reasons, defense was not asserted in Defendants’ answers). Thus, the trial court and the Fourth Department correctly ruled that the defense had been waived because it was not plead and because it was a surprise in light of admissions and documents disclosed during discovery and the first trial. Indeed, the Town’s own documents clearly indicate that an easement from Mr. Marinaccio would be needed in order to route water onto his property (4411, 4434). Further, that was the position taken by the Town and KEI during discovery (6674, 6676-6679, 6681, 6682, 6683, 6685), and during the very first trial. It was not until after opening statements and even after Mr. Kieffer provided testimony in the second trial, that KEI suddenly claimed that an easement existed permitting it and the Town to flow water on the west side of Mr. Marinaccio’s land (130-131). 55 After KEI raised the issue, Mr. Marinaccio was able to determine that his 1995 closing counsel (not Mr. Marinaccio or his trial counsel) knew about an unused and abandoned easement on the east side of his property. Both Mr. Marinaccio and his trial counsel, however, were completely surprised by KEI’s claim that an easement existed permitting the flow of water on the west side of Mr. Marinaccio’s property and through the middle of the northern section of the property (136-137). KEI also incorrectly argues that since CPLR § 3018 does not specifically identify an easement as an affirmative defense, it cannot be one. By its very terms, CPLR § 3018(b) provides that “[t]he application of this subdivision shall not be confined to the instances enumerated.” In other words, other affirmative defenses exist in addition to those enumerated in CPLR § 3018(b). Under CPLR § 3018(b), “[a] party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading . . . .” Here, there is no question that KEI’s belated claim of easement, which was first made after discovery was completed and after the first three week long trial, blind sided Mr. Marinaccio. KEI’s argument that Mr. Marinaccio had actual and/or constructive notice of the easement ignores the fact that the case was litigated for years under the 56 reasonable and supported belief that the Town and KEI needed an easement and did not obtain one as admitted throughout discovery and the first trial. Therefore, the trial court correctly precluded KEI from presenting the defense. C. Raising Mr. Marinaccio’s Permission In a Null Pleading Does Not Obviate the Need to Plead Easement as An Affirmative Defense, Especially Since the Evidence Conclusively Established that No Party Had Mr. Marinaccio’s Permission KEI argues that it preserved an easement defense by alleging in prior answers, which the trial court and the Fourth Department correctly determined are not a part of this record, (Marinaccio, 90 A.D.3d at 1600), that Mr. Marinaccio “agreed or assented” to the Defendants’ use of his land. However, it is well established that “[w]hen an amended complaint has been served, it supersedes the original complaint and becomes the only complaint in the case.” Branower & Son v. Waldes, 173 A.D. 676, 160 N.Y.S. 168 (1st Dept. 1916); see also Aikens Constr. of Rome, Inc. v. Simons, 284 A.D.2d 946, 946, 727 N.Y.S.2d 213 (4th Dept. 2001); St. Lawrence Explosives Corp. v Law Bros. Contr. Corp., 170 A.D.2d 957, 958, 566 N.Y.S.2d 127 (4th Dept. 1991); Schoenborn v. Kinderhill Corp., 98 A.D.2d 831, 832, 470 N.Y.S.495 (3d Dept. 1983); Hawley v. Travelers Indem. Co., 90 A.D.2d 684, 455 N.Y.S.2d 884 (4th Dept. 1982); Halmar Distribs. v. Approved Mfg. Corp., 49 A.D.2d 841, 841, 373 N.Y.S.2d 599 (1st Dept. 1975). 57 “The new pleading supersedes the original pleading and all proceedings relative thereto have thus been rendered moot.” Wrobleski v. Wakefield Homes, Inc., 46 A.D.2d 805, 805, 361 N.Y.S.2d 36 (2d Dept. 1974). “Thus, defendants' original answer has no effect and a new responsive pleading must be substituted for the original answer.” St. Lawrence Explosives Corp., 170 A.D.2d at 958; see also Stella v. Stella, 92 A.D.2d 589, 589, 459 N.Y.S.2d 478 (2d Dept. 1983). "Such original pleading under the circumstances . . . does not set forth the issues which are involved.” Millard v. Delaware, Lackawanna & W. R.R. Co., 204 A.D. 80, 82, 197 N.Y.S.2d 474 (3d Dept. 1923) (emphasis added); see also Cherry v. Koch, 129 Misc.2d 346, 349, 491 N.Y.S.2d 934 (N.Y. Sup. Ct. 1985); Mendez v. Goroff, 25 Misc.2d 1013, 1014, 203 N.Y.S.2d 568 (N.Y. Sup. Ct. 1960); New York Insulated Wire Co. v. Westinghouse Elec. & Mfg. Co., 32 N.Y.S. 1127, 88 Hun 269 (1st Dept. 1895). As such, KEI’s previous answers were nullities because they were not responsive to Mr. Marinaccio’s Fourth Amended Complaint. They have no operative effect. Indeed, the uncontroverted truth is that KEI never answered the Fourth Amended Complaint and there was no “agreement” or “assent” from Mr. Marinaccio to permit the Defendants to use his land as a dumping ground for storm water. The proof of this is in the deposition and trial testimony of the Town’s own witnesses, Gregory Giblin. Mr. Giblin testified that in 2002 Mr. Marinaccio 58 refused to give the permission to enter onto his property when he was first asked years after the pipes and pond had already been installed (1445, 1448). D. Mr. Marinaccio’s Fourth Amended Complaint Did Not Raise the Grant of an Easement By a Prior Land Owner At page 39 of its brief, KEI also argues that it was not required to raise the easement affirmative defense because Mr. Marinaccio’s allegations in his prior complaints asserted the lack of an easement from Mr. Marinaccio. In addition to the fact that a subsequent amended complaint renders a prior complaint a nullity, as articulated above, none of Mr. Marinaccio’s pleadings refer to an easement having been granted by a prior land owner, as KEI suddenly claimed after the second trial started. Mr. Marinaccio’s original complaint refers to the fact that pre-lawsuit, Mr. Marinaccio discovered the existence of the Town’s June 9, 2000 notes indicating that both the Town and KEI stated, “[t]he property to the north of Lapp Road is apparently owned by Paul Marinaccio - the town will contact him regarding an easement along his west property line (5878).” That complaint also alleges at paragraphs 23 and 24 that “Marinaccio never agreed to give any easement to the Town, Kieffer or anyone else to allow storm water from Lexington Woods to outfall or drain onto his Property (5878).” The same allegations are made in: (1) Mr. Marinaccio’s Second Amended Verified Complaint at paragraphs 12 and 13 59 (5887); and Mr. Marinaccio’s Fourth Amended Complaint at paragraphs 12 and 13 (5894), which KEI never bothered to answer. Nowhere in Mr. Marinaccio’s Fourth Amended Complaint did he raise the issue of an easement having been granted by a former land owner in favor of the Town. Thus, the alleged easement that KEI wished to assert, which was allegedly granted by a former land owner in the 1960s, was never referenced in a single complaint served by Mr. Marinaccio. Accordingly, the pleadings in the case do not raise the issue of a grant of an easement from a former land owner to the Town or KEI. E. Mr. Marinaccio Did Not Willfully Fail To Disclose the Existence of an Easement At page 40 of its brief, KEI argues that Mr. Marinaccio willfully failed to fully respond to discovery demands. This argument was not made to the trial court at the time that the court decided that the easement defense had been waived. Hence, the argument is not preserved for appeal. Nevertheless, in its appellate brief, KEI refers to discovery demands that were served by the Town, which has settled this litigation and is no longer a party. The record is devoid of any requests from KEI for discovery of any type. Because KEI did not demand any documents concerning potential easements, it cannot claim that Mr. Marinaccio did not fully respond to the Town’s 60 (a settling Co-Defendant) demands to advance its cause, especially since: (1) KEI had a letter in its possession, which it did not disclose until after the second trial commenced referencing the claimed easement; (2) Mr. Marinaccio did fully respond to the Town’s demands (7414-7419); (3) no party objected to Mr. Marinaccio’s response; (4) no party moved to compel further responses; (5) neither KEI nor the Town raised the alleged inadequate disclosure before the trial court ruled that the easement affirmative defense had been waived; and (6) the alleged affirmative defense could have been discovered by a search of publically available documents, especially since KEI had documentation in its files which referenced the alleged easement. F. KEI’s Argument that the Trial Court Should Have Taken Judicial Notice of the Easement Lacks Merit Here, the trial court was not required to take judicial notice of the purported easement on the west side of Mr. Marinaccio’s property, despite KEI’s contentions otherwise (see KEI Brief, at p. 40-41). See Hunter v. New York, Ont. & W. R.R. Co., 116 N.Y. 615, 621, 23 N.E. 9 (1889) (“Courts are not bound to take judicial notice of matters of fact. Whether they will do so or not depends on the nature of the subject, the issue involved and the apparent justice of the case.”); Walton v. Stafford, 14 A.D. 310, 314, 57 N.E. 92 (1st Dept. 1897), aff'd, 162 N.Y. 558 (1900) (“The judge is not obliged to take judicial notice of the fact, but is at liberty 61 to do so in his discretion.”); Cole Fischer Rogow, Inc. v. Carl Ally, Inc., 29 A.D.2d 423, 426, 288 N.Y.S.2d 556 (1st Dept. 1968), order aff'd, 25 N.Y.2d 943, 252 N.E.2d 633 (1969). Moreover, the court properly precluded the easement for two reasons. First, it was not argued to the trial court, which decided to preclude the defense, and is therefore waived. Second, the trial court ruled that the defense had been waived by a failure to plead it, not because of any evidentiary issue. Thus, KEI’s judicial notice argument fails because it simply ignores the reasons for preclusion, set forth above. G. Estoppel Precludes the Easement Defense The law is clear that where a municipality, through its employees, makes a misrepresentation to a plaintiff, the doctrine of estoppel binds and bars a municipality from taking a contrary position. Bender v. New York City Health & Hosp. Corp., 38 N.Y.2d 662, 345 N.E.2d 561 (1976); Eden v. Bd. of Trustees of State Univ. of N.Y., 49 A.D.2d 277, 284, 374 N.Y.S.2d 686 (2d. Dept. 1975); Quaglia v. Incorporated Vill. of Munsey Park, 54 A.D.2d 434, 444-45, 389 N.Y.S.2d 616 (2d Dept. 1976); Caprio v. State, No. 103245, 2003 WL 21512527 (Ct. Cl. May 28, 2003); In re 1555 Boston Rd. Corp. v. Finance Adm’r of the City of New York, 61 A.D.2d 187, 401 N.Y.S.2d 536 (2d Dept. 1978). The estoppel 62 doctrine extends to misrepresentations from a municipality’s lawyer. Arachy v. State, 196 A.D.2d 625, 601 N.Y.S.2d 349 (2d Dept. 1993) (municipal lawyer’s misrepresentations bound municipality under estoppel theory). Here, before Mr. Marinaccio purchased the property, the Town’s attorney advised that an easement existed on the east side of the property, not the west side as KEI now contends without a survey to prove it. (136-137, 142) Additionally, during development, the Town advised KEI that an easement from Mr. Marinaccio would be needed in order to route water across his property. This fact was documented in official notes of the Town, and was well-known to KEI. During depositions, the Town continued to maintain that an easement was needed, but that none had been obtained, including admitting the same in a notice to admit. (6962) Following discovery, the Town and KEI admitted during the first trial that an easement was needed. (6674, 6676-6679, 6682, 6683) All of these facts establish an estoppel and/or waiver of the easement defense. 63 POINT III NO EASEMENT EXISTS A. If an Easement Existed in 1966, It Was Abandoned Despite the Town’s and KEI’s express judicial admissions during discovery and the first trial that an easement from Mr. Marinaccio was necessary, KEI claims that the Town (not KEI) had a 1966 easement that allowed the Town (not KEI) to use Mr. Marinaccio’s land for water diversion purposes. As Mr. Marinaccio correctly argued to the trial court, however, the subject claimed easement had been abandoned (153, 155). Indeed, the Town’s 24 year employee, Greg Giblin, testified that in 2002 he viewed the ditch where KEI claims the Town had an easement and it had not been maintained for at least 50 years (1464-1470). There was other proof provided to the trial court that a large castle like home was built on top of the area where the easement is claimed to exist (138-139). Under Highway Law Section 2, a “highway” includes “sluices, drains, ditches, waterways, embankments, retaining walls and culverts having a width of opening of twenty feet or less . . . .” Additionally, Section 205 of the Highway Law provides that “[e]very highway that shall not have been opened and worked within six years from the time it shall have been dedicated to the use of the public, 64 or laid out, shall cease to be a highway . . . and every highway that shall not have been traveled or used as a highway for six years, shall cease to be a highway, and every public right of way that shall not have been used for said period shall be deemed abandoned as a right-of-way.” Since there is proof that the ditch had not been used or maintained by the Town for more than 50 years, the easement had been abandoned. B. If an Easement Existed, It Was Not To Drain Lexington Woods The map cover, reproduced with KEI’s notations and depictions at page 16 of its brief, indicates that the Drainage Easement is as follows: existing farm ditch shall serve as drainage ditch for streets in Woodside Subdivision. Easement shall be 12’ wide, 6’ either side of ditch centerline, and in the event of a street being built through this property to Lapp Road, Easement for Drainage and Street width may be combined into 60’ wide road right of way and relocated as directed by the Town Board of Clarence (emphasis added). Thus, by the express terms of the map cover, the easement was for drainage purposes for the Woodside Subdivision, which is not the Lexington Woods Subdivision that was at issue during trial. There was no easement granted to permit the flow of additional water from a new subdivision that was built by KEI, and named “Lexington Woods.” 65 Further, for the easement to extend to Lapp Road, it was necessary for a road to be built to Lapp Road and for the easement to be relocated to the road right of way, which did not take place. Thus, by the terms of the map cover, the easement did not serve to drain the Lexington Woods Subdivision, which was the one in dispute, and it did not extend to Lapp Road unless a road was built to Lapp Road, which again, never occurred. POINT IV THE BELATED EASEMENT DEFENSE WOULD NOT HAVE IMPACTED THE PUNITIVE DAMAGES VERDICT Assuming arguendo that the easement defense was permissible when asserted, it would not have changed the result because water was diverted to Mr. Marinaccio’s entire parcel (not just the alleged defined easement area) and caused it to be completely consumed by wetland. Moreover, as the Fourth Department correctly determined, KEI’s unproven contentions concerning an easement on the west side of the property are irrelevant, as the only purported easement was located on the east side of Mr. Marinaccio’s land. Further, there is no question that the claimed easement did not permit the Town or KEI to use all of Mr. Marinaccio’s land as a dumping ground for storm water, which was the result of KEI’s trespass. In Western New York Land Conservancy, Inc. v. Cullen, 66 A.D.3d 1461, 1463, 886 N.Y.S.2d 303 (4th Dept. 2009), the Fourth Department ruled that it was 66 not error to preclude a trespasser from “contending at trial, eliciting or introducing evidence, or suggesting to the jury” that the trespasser had permission to enter upon a plaintiff’s land. The court ruled that even if there was permission to enter the plaintiff’s land for certain reasons, there was no permission to allow the defendant from doing more than had been permitted. Thus, as in the instant case, the alleged error of the trial court in refusing to permit an easement defense was harmless because KEI engaged in conduct that was not permitted by the alleged easement. Here, the alleged easement covered only a 12 foot wide section of Mr. Marinaccio’s land, and nothing more (4952). This is significant because the proof established that water overflowed outside of the ditch, leaving as much as eighty percent of Mr. Marinaccio’s land with standing, stagnant and pooling water (911, 917). In fact, the proof established that neither the ditch (911) nor the pond (920) can or do contain the storm water, but rather, both allowed water to flow all over the property, putting as much as eighty percent of it “under water” (917). In summary, the proof was as follows: Exhibit 119 (4602) depicts the lack of capacity of the ditch to flow all water routed to it (911). It demonstrates significant and substantial amounts of water “spilling out” and to other parts of the property that are, without question, unencumbered by any alleged easement (912-913). 67 Exhibit 149 (4632) represents Mr. Marinaccio’s property east of the ditch (where KEI claims an easement exists) (913). At this point in the picture, however, the ditch that is claimed to be part of the easement is not photographed (914). Nevertheless, as the Court can see, the area is inundated with deep standing water that has spilled out of the ditch and to areas that are unquestionably not part of the claimed easement. Exhibit 147 (4630) shows the area of the ditch that is claimed to be subject to the easement (914-915). The depth of the water was 30.5,” while the depth of the ditch was just 12” (915). Consequently, as can be seen in the photograph, water was over spilling the ditch. The retention pond that KEI built overflowed on multiple occasions, resulting in water pooling on Mr. Marinaccio’s property (920-921) as depicted in Exhibits 130 (4613), 134 (4617, 920), 135 (4618, 920). The pond is simply not big enough to contain the water that is routed there (922). Consequently, when it overspills, water flows onto Mr. Marinaccio’s land and outside the area of the alleged easement. According to eye-witnesses testimony, at the time that the photographs were taken, eighty percent of the property was “under water” as depicted in the photographs (917). Mr. Marinaccio’s wetland expert, Scott Livingstone, testified that because of increased water over the years (1045, 1048-1051), and the fact that KEI built a berm to prevent water from exiting Mr. Marinaccio’s land (1046-1047), undevelopable wetlands on Mr. Marinaccio’s land expanded from just six acres in 2001 (1008-1010), 68 to 27.5 acres in 2006 (1019, Exhibit 223), to over 33 acres in 2008 (1022-1923 Exhibit 224), to 37.7 acres in 2009 (1040-1041, Exhibit 225). Moreover, even if there was an easement, it only permitted water diversion in a 12 foot wide area through Mr. Marinaccio’s land. At trial, however, it was established that the water overflowed that 12 foot wide area, caused ponding water and the creation of a 37.7 acre wetland on Mr. Marinaccio’s property. It is undisputed that, even if an easement existed, the Defendants did not have permission or an easement to permit the flow of water outside the boundary of the alleged 12 foot wide easement. Nevertheless, that is exactly what KEI did, allowed and then refused to remediate. Furthermore, KEI does not claim that it had permission or an easement to create a berm on Mr. Marinaccio’s land, like the one KEI built, which blocked the drainage of water from Mr. Marinaccio’s land. Accordingly, even if KEI had not waived the easement argument, the jury verdict would have been the same. Thus, this alleged error was harmless. 69 POINT V THERE WAS NO FRAUD A. KEI’s Brief Contains Unjustified and/or Unwarranted Accusations and Criticisms of Mr. Marinaccio and His Counsel As the Court is aware, the appeal before it is limited to a jury award of $250,000 in punitive damages against KEI as a result of its wanton and reckless, and/or malicious diversion of storm water onto Mr. Marinaccio’s property without his permission or a proper easement. All other matters have been settled. KEI, however, accuses Mr. Marinaccio and his counsel of, among other things, committing fraud, making untruthful statements, and violating a court order, all without justification or substantiation. Neither the trial court nor the Fourth Department agreed with these unwarranted attacks, which are unrelated to Mr. Marinaccio’s punitive damages award and are violative of professional ethics. Thus, to the extent KEI’s brief contains such unfounded accusations, they should not be considered by this Court. Appellate Courts throughout New York have recognized that “[b]riefs which make unwarranted attacks on opposing counsel [or an adverse party] are violative of professional ethics, and the practice is generally condemned.” Baylis v. Wood, 246 A.D. 779, 779, 284 N.Y.S.2d 109 (2d Dep’t. 1935); see also In re Matter of Selle, 286 A.D. 1058, 144 N.Y.S.2d 798 (3d Dept. 1955) (expunging from records 70 on file with court brief and reply brief that are scandalous); Leszczynski v. Penn. R.R. Co., 274 A.D. 1003, 1003, 84 N.Y.S.2d 579 (2d Dept. 1948) (intemperate statements have no place in a brief submitted to the court) Griffin v. Griffin, 231 A.D. 819, 819, 246 N.Y.S.885 (1st Dept. 1930) (appellant’s brief stricken form the files as impertinent and scandalous); Joyce v. Katzburg, 213 A.D. 883, 209 N.Y.S. 854 (2d Dept. 1925) (appellant’s brief stricken from the files of the court where attack made upon plaintiff in the appellant’s brief was gratuitous, unwarranted, and scurrilous); Scholing v. O’Conner, 209 A.D. 839, 204 N.Y.S. 777 (3d Dept. 1924) (briefs of appellant’s counsel removed from the files of the court where they contained accusations and criticisms directed against defendants’ trial counsel, deemed to be wholly unjustifiable); Jamaica Estates v. Smith, 177 A.D. 882, 163 N.Y.S. 389 (1st Dept. 1917) (“in consequence of the appellant having incorporated an irrelevant and scandalous reference to the respondent’s counsel, the appellant’s brief is hereby stricken”). Indeed, where an “Appellant’s reply brief is permeated with accusations and criticisms directed against respondent’s counsel . . . the [brief] should be expunged from the records of [the] court.” In re Reynolds, 23 A.D.2d 623, 624, 257 N.Y.S.2d 368 (4th Dept. 1965); see also Abbott v. Prudential Ins. Co. of Am., 34 N.Y.S.2d 818 (4th Dept. 1942) (motion to strike out brief granted with costs where 71 “paragraph . . . in appellant’s brief is scandalous, scurrilous, improper, and unwarranted and the brief should be removed from the records of this Court”). Similar to this case, in Baylis, 246 A.D. at 779, the appellant’s brief made statements that the decision of the trial court was induced by opposing counsel’s fraud upon the court. The court granted the motion of the respondent, with costs, to have the appellant’s appeal brief struck from the record because it contained “unjustified accusations against and criticisms of the respondent’s counsel.” Id. The court noted that the “statement in appellant’s brief that the decision of the trial court was induced by fraud of defendant’s counsel practiced upon it is wholly unjustified and unwarranted.” Id. Additionally, the court stated that “the attorney who presented the brief and argued the motion for appellants is deserving of severest censure, which must be shared by the attorney of record whose name is subscribed to the brief.” Id at 779-780.” Here, KEI’s brief makes several erroneous and unwarranted accusations, all of which the trial court and the Fourth Department rejected, that Mr. Marinaccio and his counsel violated an order of the trial court by making various arguments to the jury and providing testimony concerning the lack of an easement or permission by Mr. Marinaccio, including that: 72 (1) plaintiff not only mentioned the easement, he testified falsely that no easement existed and no one had permission to allow water to drain onto his land; (2) plaintiff’s counsel made the same improper arguments to the jury at lease five times; (3) plaintiff’s counsel went so far as to misinform the jury in his closing that the most striking thing about the case was that defendants had no easement; (4) [plaintiff’s counsel] made the wholly improper and false comment that no easement exited and that was undisputed; and (5) plaintiff’s counsel told the jury while fully aware of the trial court’s gag order, that [KEI] and the Town had never addressed the [easement] issue. KEI then states that “the trial court issued a very clear order that no witness or attorney was to mention the easement.” However, KEI grossly mischaracterizes the trial court’s preclusion order and fails to inform this Court that such order only concerned Defendants’ “evidence” of an alleged easement on the west side of the property. More specifically, the trial court determined that Defendants were barred from submitting evidence in support of an easement affirmative defense that was not pled in any of their answers and which was not “discovered” until the eve of 73 the second trial. The trial court did not bar Mr. Marinaccio or his counsel from generally using the word easement or making mention of KEI’s failure to secure an easement on the property. Equally important, KEI does not cite a single place in the voluminous Record of this case where the trial court noted that Mr. Marinaccio or his counsel’s comments were improper. Indeed, if Mr. Marinaccio or his counsel were in violation of a “gag order” issued by the trial court, as KEI states, then no one was in a better position than the trial court to make that determination. The trial court made no such determination. Neither did the Fourth Department. Certainly, KEI’s recently hired counsel, not even present at the trial in question, is not better equipped than the trial court to determine if Mr. Marinaccio or his counsel violated the court’s order. Further, KEI did not claim during trial that Mr. Marinaccio or his counsel violated an order of the court, or engaged in any misconduct. KEI did not object to Mr. Marinaccio’s testimony, did not object to Mr. Marinaccio’s counsel’s closing argument, and did not move to strike Mr. Marinaccio’s testimony or the closing argument. Instead, KEI waited until after the trial to now attack Mr. Marinaccio and his counsel with scandalous and unwarranted accusations and criticisms. KEI also improperly states that “Defendants did not address the easement issue with the jury because they had been ordered not to and, unlike Plaintiff and 74 his counsel, they obeyed that order.” KEI further states that “Plaintiff and his counsel violated the order not just by mentioning the easement but by arguing to the jury untruthfully that no easement existed, while KEI and the Town by obeying the trial court’s order were forced to sit mute and await the jury’s verdict and an opportunity to seek justice on appeal. This could not be further from the truth. Again, KEI’s brief does not refer to a single place in the Record where the trial court stated that Mr. Marinaccio or his counsel made any improper comments. KEI was not forced to sit silent and had the opportunity to object to any statements made by Mr. Marinaccio or his counsel. KEI, however, chose not to do so and now attempts to resurrect an issue it never presented and did not preserve at the trial court level by making scandalous remarks against Mr. Marinaccio and his counsel in its brief. Stated differently, KEI incorrectly and improperly contends that Mr. Marinaccio and his counsel somehow committed a fraud by making various arguments to the jury and by providing testimony concerning the lack of an easement or permission from Mr. Marinaccio. The trial court, however, was well- aware that it had precluded KEI’s belated easement defense from the trial not any and all use of the word easement. For purposes of the trial, there was no easement (162-163). 75 KEI simply did not: (1) claim at trial that Plaintiff or his counsel were committing a fraud or engaging in misconduct; (2) object to the testimony.; (3) object to Mr. Marinaccio’s closing argument; (4) move to strike the testimony or the closing argument; and/or (5) claim that a “door had been opened” by Mr. Marinaccio’s testimony or his closing argument. Instead, KEI sat on its hands and never objected or raised fraud during the trial. It waited until after the trial to raise the motion of fraud, but the trial court soundly rejected the claim that Mr. Marinaccio or his counsel committed any fraud on it. Hence, KEI waived the meritless argument that it now advances to this Court. POINT VI THE COURT PROPERLY EXCLUDED THE TOWN’S PROPOSED EXPERT KEI claims that the trial court improperly excluded the Town’s damage expert. This issue was not preserved before the trial court and is not properly on appeal because (1) only the issue of punitive damages is on appeal; (2) KEI did not even disclose Mr. Klauk as an expert; and (3) KEI’s purported “expert” was a proposed compensatory damage expert witness, not a punitive damage witness. 76 A. KEI Failed to Argue Before The Trial Court That Mr. Marinaccio Did Not Demand Expert Disclosure As a general rule “an appellate court will not consider an issue which was not raised in the court of first instance.” In re Daubman v. Nassau County Civil Serv. Comm’n, 195 A.D.2d 602, 603, 601 N.Y.S.2d 14 (2d Dept. 1993); see also Cahill v. Harter, 277 A.D.2d 655, 656, 716 N.Y.S.2d 447 (3d Dept. 2000) (“Inasmuch as much as . . . argument is raised for the first time on appeal it is unpreserved for this Court’s review”); Puderbaugh v. State Emp’s Fed. Credit Union, 276 A.D.2d 992, 993, 714 N.Y.S.2d 387 (3d Dept. 2000) (“we observe that this issue was not raised in Supreme Court and is, therefore, not reviewable”); Fleet Bank v. Powerhouse Trading Co., 267 A.D.2d 276, 276, 700 N.Y.S.2d 53 (2d Dept. 1999) (appellant’s belated argument, raised for the first time on appeal, is unpreserved for appellate review); Kadan v. Volkswagen of Am., Inc., 111 A.D.2d 540, 541, 489 N.Y.S.2d 412 (3d Dept. 1985) (defendant waived argument on appeal where failed to raise contention before special term). Thus, “an issue may not be raised for the first time on appeal where it could have been obviated or cured by factual showings or legal countersteps in the trial court.” Oram v. Capone, 206 A.D.2d 839, 840, 615 N.Y.S.2d 799 (4th Dept. 1994) (quoting Telaro v. Telaro, 25 N.Y.2d 433, 438, 255 N.E.2d 158 (1969). 77 B. Mr. Marinaccio Requested Expert Disclosure from KEI The fact that Mr. Marinaccio did request expert disclosure from KEI is supported by the Record, which contains KEI’s expert disclosure (7033). That expert disclosure specifically references it as being KEI’s “response to [Mr. Marinaccio’s] demand for expert disclosure.” Id. Accordingly, KEI’s argument that no expert disclosure was demanded by Mr. Marinaccio is false and belied by the Record. C. KEI Failed to Comply with a Court Order Requiring Disclosure of Any Experts KEI failed to disclose Mr. Klauk as its expert, nor did KEI serve expert disclosure on Mr. Marinaccio at any point throughout this case, despite an order issued by the trial court requiring such disclosure. The trial court’s Disclosure Order, dated June 5, 2009, required the parties “disclose to opposing counsel and the Court . . . the identity of any and all experts under CPLR § 3101(a) that [they] intended to call at the time of trial.” The Disclosure Order further stated “failure to comply may result in the preclusion of testimony and/or appropriate sanctions.” KEI, however, did not disclose Mr. Klauk to Mr. Marinaccio or the trial court by this deadline or at any point thereafter. 78 D. KEI Failed to Make Expert Disclosure Pursuant to CPLR §3101(a)(1)(i) During the first trial, Mr. Marinaccio moved to preclude KEI from presenting a damages expert since he only received liability type expert disclosure (1896-1899). In response to the motion, KEI’s counsel stated, “I have no intention of retaining additional damages experts. . . I’ll call Mr. Kieffer on damages as a factual witness, but other than that, Judge, I’m not looking for more time to retain a damage expert” (1899). The record is devoid of KEI disclosing Mr. Klauk as a damages expert. Since there is no expert disclosure from KEI indicating that it intended to call Mr. Klauk as an expert, it cannot claim that the lower court erred when it exercised its discretion to preclude the Town from calling an expert witness that the Town did not properly disclose. E. KEI Failed to Preserve its Argument that Mr. Marinaccio Did Not Comply with 22 NYCRR 202.7 KEI’s argument that Mr. Marinaccio did not comply with Uniform Rule 202.7 was not presented to the lower court at the time Mr. Marinaccio’s motion in limine was heard and decided. Therefore, it is not preserved for appeal. Further, there is no question that the Court correctly exercised its discretion in concluding that the “disclosure” provided by the Town was insufficient as a 79 matter of law, and warranted preclusion. Ryan v. St. Francis Hosp., 62 A.D.3d 857, 878 N.Y.S.2d 786 (2d Dept. 2009)(trial court providently exercised discretion to preclude expert); Marwin v. Top Notch Constr. Corp., 50 A.D.3d 977, 856 N.Y.S.2d 238 (2d Dept. 2008)(same). Indeed, preclusion was appropriate because the Town failed to offer a reasonable explanation or good cause for failing to specify in reasonable detail the subject matter of the proposed expert’s testimony. Lucian v. Schwartz, 55 A.D.3d 687, 856 N.Y.S.2d 643 (2d Dept. 2008); Rossi v. Matkovic, 227 A.D.2d 609, 643 N.Y.S.2d 618 (2d Dept. 1996). F. The Trial Court Did Not find that KEI Had Timely Served Their Damages Expert Disclosure KEI at page 50 of its brief, incorrectly states that “defendants …timely served their damages expert disclosure.” Thus, KEI refers to itself and the Town collectively as “defendants” in an attempt to deflect this Court’s focus away from the fact that KEI never made a separate disclosure as required by both the trial court’s order and the CPLR. See N.Y. CPLR § 3101(d) (2009). KEI essentially argues that the Town’s disclosure of Mr. Klauk vicariously became its disclosure. There is no support for this assertion under New York law. The trial court’s disclosure order clearly required each party to identify any and all experts it expected to call at trial under CPLR § 3101(d). Under CPLR § 3101(d)(1)(i): “upon request, each party shall identify each person whom the 80 party expects to call as an expert witness at trial. Thus, the trial court’s Disclosure Order, a request under CPLR § 3101(d), required KEI to identify each person it expected to call as a witness at trial. This requirement was not and could not be satisfied by the Town’s expert disclosure. KEI made no such disclosure of its own and should not be permitted to use the Town’s expert disclosure to satisfy its obligation. Finally, there is no nexus between the Town’s proposed compensatory damages witness and the only issue on appeal, i.e. whether any valid line of reasoning or permissible inferences could possibly lead the jury to conclude that KEI’s conduct was wanton and reckless and/or malicious, and warranted punitive damages, based on the evidence Mr. Marinaccio introduced at trial. Moreover, assuming the Town’s proposed compensatory damages expert was allowed to testify, based on the evidenced presented (see supra Point I (B); Statement of Facts, at p. 19-33), there would undoubtedly still exist a valid question of fact as to whether KEI’s conduct warranted punitive damages. Thus, the prelusion of the Town’s compensatory damages expert was proper, had no nexus to the punitive damages award, and even if somehow erroneous, constituted harmless error. 81 POINT VII KEI’S OBJECTIONS ARE WAIVED AND UNPRESERVED BECAUSE IT DID NOT OBJECT TO THE COURT’S INSTRUCTION TO THE JURY KEI now argues, for the first time on appeal, that the trial court erred by, among other things: (a) charging the jury that reliance on “sound engineering practices” was not a defense (Point V of KEI’s Brief); and (b) purportedly “charging the jury that it should disregard proof that Plaintiff caused his own flooding.” During the charge conference, however, KEI did not articulate any of the objections that it now advances (1747-51). KEI’s only objection to the jury charge and verdict sheet was to adopt a limited and a general objection made by the Town, which was, “I object to the charge to the extent that it fails to conform to my request to charge or contains any charges that are in addition to my requests to charge.” (1750-1751). The law is well-established that a party must specifically object to jury instructions and/or a verdict sheet to preserve the objection. Beltz v. City of Buffalo, 61 N.Y.2d 698, 460 N.E.2d 1089 (1984) (specific, not general, objections to jury instructions required. Otherwise, they are waived); Brown v. Concord Nurseries, Inc., 53 A.D.3d 1067, 863 N.Y.S.2d 314 (4th Dept. 2008) (same); 82 Fitzpatrick & Weller P.C. v. Miller, 21 A.D.3d 1374, 802 N.Y.S.2d 292 (4th Dept. 2005) (same). Where a party fails to specifically object to a jury charge, the law as stated in the charge becomes the law applicable to the parties in the litigation and the trial court should not set aside a verdict based on legal principles that it later decides should have been included or excluded from the charge. Harris, 64 N.Y.2d at 700. Since none of the objections that are now advanced were made during the trial, they are simply not preserved for review. Thus, they should be rejected. A. Jury Charge Regarding Mr. Marinaccio’s Lack of a Duty to Maintain His Land In addition to waiving any claim that the compensatory damage charge was inappropriate by failing to specifically object to it, KEI also settled the compensatory damage award. Therefore, Point VI of KEI’s brief (pp. 56-62), which concerns whether Mr. Marinaccio had a duty to maintain his land, is beyond the scope of what is on appeal, whether punitive damages were warranted. Indeed, there is no connection concerning Mr. Marinaccio’s duty to maintain his property and a punitive damage award against a trespasser such as KEI. As the trial court correctly charged the jury, with no objections by KEI, Mr. Marinaccio “possessed no duty to keep any water course, ditch or furrow on his property clean from any debris which may have accumulated there is order to assist 83 the flow of water on his property. Moreover, [Mr. Marinaccio] did not possess a duty to alter his property in any way which may have assisted the flow of water across his property (1782).” See Kerhonkson Lodge, Inc. v. State, 4 A.D.2d 575, 578, 168 N.Y.S.2d 56 (3d Dept. 1957) (no duty rested on claimant to keep the dry brook on his property free from any debris accumulated there from surface water discharged by the state); Noonan v. City of Albany, 79 N.Y. 470, 34 Sickels 470 (1880) (where defendant claimed an obstruction caused the plaintiff’s injury and absolved the defendant of liability, plaintiff was not bound to protect himself against the consequence of the illegal act of the defendant, by removing, or causing the removal of the obstruction); Keller v. State, 19 Misc.2d 794, 799, 174 N.Y.S.2d 358 (Ct. Cl. 1959). B. The Trial Court Did Not Foreclose the Jury from Considering Causation KEI argues that the instruction concerning Mr. Marinaccio’s lack of duty inexplicably prevented the jury from considering that Mr. Marinaccio caused some or all of his damage. However, the jury was instructed on Mr. Marinaccio’s potential contributory negligence (1781) and was asked whether Mr. Marinaccio was negligent in the use or maintenance of his property (4960). The jury concluded that he was negligent, but that his negligence did not cause any damage (4961). Thus, the court did not take away the issue of causation from the jury. The trial 84 court specifically asked the jury to decide whether Mr. Marinaccio caused any of his damages. The jury concluded that he did not. Additionally, the jury was correctly instructed on Mr. Marinaccio’s lack of a duty to maintain his property for the benefit of KEI (1781). The trial court read verbatim from Mr. Marinaccio’s Proposed Request to Charge concerning his duty to maintain his property (7058). The charge was proper, supported by case law, and not objected to by KEI. See Kerhonkson Lodge, 4 A.D.2d at 578; Keller, 19 Misc. 2d at 799. C. Reliance on Engineering Practice Is no Defense to Trespass KEI also argues that “standard engineering practice” somehow sanctions trespass or nuisance. However, there is no law to that effect. The lower court charged the jury without specific objection that standard engineering practice was no defense to these torts. Moreover, the trial court correctly charged the jury “if you find that Defendants are liable for unlawful diversion of surface water onto [Mr. Marinaccio’s] property, then Defendants cannot escape liability on the theory that its actions were in conformance with good engineering practices. Thus, the fact that the subdivision’s design was allegedly designed in accordance with good engineering practices is not sufficient to remove liability Defendants if you find 85 that their acts were in derogation of Plaintiff’s rights as a property owner (1773).” Again, this instruction was read verbatim from Mr. Marinaccio’s Proposed Request to Charge (7059) and without KEI’s objection. Equally important, this jury charge was clearly supported by the law of this State. See Kerkonkson, 4 A.D.2d at 578. (State could not escape liability on the theory that certain highway drainage changes made were in conformity with good engineering practice); Holmes v. State, 32 Misc.2d 1077, 226 N.Y.S.2d 626, 629 (Ct. Cl. 1962) (the fact that the design was in accordance with good engineering practice is not sufficient to remove liability if the acts were in derogation of the rights of the claimant). CONCLUSION Based on the foregoing, Mr. Marinaccio respectfully submits that the Court affirm the trial court’s judgment awarding punitive damages to Plaintiff- Respondent, Paul Marinaccio, Sr., in the amount of $250,000.00, as well as the memorandum and order of the Fourth Department; together with such other and further relief as the Court deems just and proper. Dated: October 24, 2012 Buffalo, New York Respectfully submitted, LIPSITZ GREEN SCIME CAMBRIA LLP By: ____ ~~~--------------- Jose J. Manna, Esq. Ke eth E. Webster, Esq. 42 Delaware Avenue, Suite 120 Buffalo, New York 14202 (716) 849-1333 ext. 396 Attorneys/or Paul Marinaccio, Sr., P laintifflRespondent 86