Marinaccio v Town of Clarence
Court of Appeals of New York
February 5, 2013, Argued; March 21, 2013, Decided
No. 31
Reporter
20 N.Y.3d 506 *; 986 N.E.2d 903 **; 964 N.Y.S.2d 69 ***; 2013 N.Y. LEXIS 466 ****; 2013 NY Slip Op 1868; 2013 WL 1149157
 [1]  Paul Marinaccio, Sr., Respondent, v Town of Clarence,
Defendant, and Kieffer Enterprises, Inc., Appellant.
Subsequent History: Reargument denied by Marinaccio v.
Town of Clarence, 21 N.Y.3d 976, 992 N.E.2d 1088, 2013
N.Y. LEXIS 1661, 970 N.Y.S.2d 744 (June 25, 2013)
Prior History: Appeal from an order of the Appellate
Division of the Supreme Court in the Fourth Judicial
Department, entered December 30, 2011. The Appellate
Division, with two Justices dissenting in part, affirmed so
much of a judgment of the Supreme Court, Erie County
(Frederick J. Marshall, J.), entered upon a jury verdict, as had
awarded plaintiff punitive damages against defendant Kieffer
Enterprises, Inc.
Marinaccio v Town of Clarence , 90 AD3d 1599, 936 NYS2d
412, reversed.
Marinaccio v. Town of Clarence, 90 A.D.3d 1599, 936
N.Y.S.2d 412, 2011 N.Y. App. Div. LEXIS 9501 (N.Y. App.
Div. 4th Dep't, Dec. 30, 2011)
Counsel:  [****1] Phillips Lytle LLP, Buffalo (Michael B.
Powers and Patricia A. Mancabelli of counsel), for appellant.
I. Plaintiff offered no proof of willful, wanton or malicious
conduct by Kieffer Enterprises, Inc. (Rocanova v Equitable
Life Assur. Socy. of U.S., 83 NY2d 603, 634 NE2d 940, 612
NYS2d 339; Laurie Marie M. v Jeffrey T.M., 159 AD2d 52,
559 NYS2d 336, 77 NY2d 981, 575 NE2d 393, 571 NYS2d
907; Sharapata v Town of Islip, 56 NY2d 332, 437 NE2d
1104, 452 NYS2d 347; New York Univ. v Continental Ins. Co.,
87 NY2d 308, 662 NE2d 763, 639 NYS2d 283; Camillo v
Geer, 185 AD2d 192, 587 NYS2d 306; Prozeralik v Capital
Cities Communications, 82 NY2d 466, 626 NE2d 34, 605
NYS2d 218; Ross v Louise Wise Servs., Inc., 8 NY3d 478, 868
NE2d 189, 836 NYS2d 509; Nickerson v Te Winkle, 161 AD2d
1123, 556 NYS2d 414; Garricks v City of New York, 1 NY3d
22, 801 NE2d 372, 769 NYS2d 152; McCann v McCann, 110
AD2d 1069, 488 NYS2d 927.) II. The trial court's preclusion
of the easement and the Appellate Division's holding that this
preclusion was "irrelevant" constitute reversible error. (Witter
v Taggart, 78 NY2d 234, 577 NE2d 338, 573 NYS2d 146;
Green Bus Lines v Consolidated Mut. Ins. Co., 74 AD2d 136,
426 NYS2d 981; Nunn v GTE Sylvania, 251 AD2d 1089, 674
NYS2d 205; Perry v Town of Geneva, 64 AD3d 1225, 882
NYS2d 626; Matter of Siwek v Mahoney, 39 NY2d 159, 347
NE2d 599, 383 NYS2d 238; Trefoil Capital Corp. v Creed
Taylor, Inc., 121 AD2d 874, 504 NYS2d 112; Harbor Hills
Landowners v Manelski, 65 Misc 2d 682, 318 NYS2d 793;
Prego v Gutchess, 61 AD3d 1394, 877 NYS2d 554.) III. The
trial court's allowance of plaintiff's untruthful testimony and
plaintiff's counsel's improper argument after the trial court
ordered that no one mention the easement was reversible
error. (Matter of New York Diet Drug Litig., 47 AD3d 586,
850 NYS2d 408; Shouse v Lyons, 4 AD3d 821, 772 NYS2d
177; Pizzi v Anzalone, 261 AD2d 374, 689 NYS2d 224;
Peterson v Melchiona, 269 AD2d 375, 702 NYS2d 388;
Bromberg v City of New York, 25 AD2d 885, 270 NYS2d 425.)
IV. The trial court erroneously precluded the defense expert's
damages testimony. (Collins v Greater N.Y. Sav. Bank, 194
AD2d 514, 598 NYS2d 544; Fine Ornaments v Esplanade
Gardens, 248 AD2d 287, 670 NYS2d 91; Bliss v Consolidated
Edison Co. of N.Y., Inc., 28 Misc 3d 1215[A], 2010 NY Slip
Op 51364[U], 957 NYS2d 634; Williams v Way, 289 AD2d
483, 735 NYS2d 170; Amherst Synagogue v Schuele Paint
Co., Inc., 30 AD3d 1055, 816 NYS2d 782; Kane v Shapiro,
Rosenbaum, Liebschutz, & Nelson, L.L.P., 57 AD3d 1513,
871 NYS2d 794; Petracca v Petracca, 305 AD2d 568, 759
NYS2d 363; Baez v Sugrue, 300 AD2d 519, 752 NYS2d 385;
Law v Moskowitz, 279 AD2d 844, 719 NYS2d 357; Gordon v
Hancock, 292 AD2d 858, 738 NYS2d 914.) V. Instructing the
jury to ignore proof of Kieffer Enterprises, Inc.'s reliance
upon his engineers and sound engineering practices was error.
(Nickerson v Te Winkle, 161 AD2d 1123, 556 NYS2d 414;
Garricks v City of New York, 1 NY3d 22, 801 NE2d 372, 769
NYS2d 152; McCann v McCann, 110 AD2d 1069, 488 NYS2d
927; Liberty Drug Co. v Bell Maintenance Co., 16 AD2d 809,
228 NYS2d 846; Kerhonkson Lodge v State of New York, 4
AD2d 575, 168 NYS2d 56.) VI. The trial court erroneously

Marinaccio v Town of Clarence
directed the jury to disregard proof that plaintiff caused his
own flooding. (Mirand v City of New York, 84 NY2d 44, 637
NE2d 263, 614 NYS2d 372; Finnegan v Brothman, 270 AD2d
808, 705 NYS2d 145; Clark v City of Rochester, 25 AD2d
713, 270 NYS2d 173; Nickerson v Te Winkle, 161 AD2d 1123,
556 NYS2d 414; Levine v Abergel, 127 AD2d 822, 512 NYS2d
218; Kiff v Youmans, 86 NY 324.)
Lipsitz Green Scime Cambria LLP, Buffalo (Joseph J. Manna
and Kenneth E. Webster of counsel), for respondent. 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 Kieffer Enterprises, Inc.'s
objection. (Cohen v Hallmark Cards, 45 NY2d 493, 382 NE2d
1145, 410 NYS2d 282; Brown v Du Frey, 1 NY2d 190, 134
NE2d 469, 151 NYS2d 649; Harris v Armstrong, 64 NY2d
700, 474 NE2d 1191, 485 NYS2d 523; Titlebaum v Loblaws,
Inc., 75 AD2d 985, 429 NYS2d 91.) II. The easement
affirmative defense was properly precluded. (Braman v
Rochester Gas & Elec. Corp., 54 AD2d 174, 388 NYS2d 407;
Keinz v Niagara Mohawk Power Corp., 41 AD2d 431, 343
NYS2d 963; Chlystun v Kent, 185 AD2d 525, 586 NYS2d 410;
Branower & Son, Inc. v Waldes, 173 App Div 676, 160 NYS
168; Aikens Constr. of Rome v Simons, 284 AD2d 946, 727
NYS2d 213; St. Lawrence Explosives Corp. v Law Bros.
Contr. Corp., 170 AD2d 957, 566 NYS2d 127; Schoenborn v
Kinderhill Corp., 98 AD2d 831, 470 NYS2d 495; Hawley v
Travelers Indem. Co., 90 AD2d 684, 455 NYS2d 884; Halmar
Distribs. v Approved Mfg. Corp., 49 AD2d 841, 373 NYS2d
599; Wrobleski v Wakefield Homes, 46 AD2d 805, 361 NYS2d
36.) III. No easement exists. IV. The belated easement
defense would not have impacted the punitive damages
verdict. (Western N.Y. Land Conservancy, Inc. v Cullen, 66
AD3d 1461, 886 NYS2d 303.) V. There was no fraud. (Baylis
v Wood, 246 App Div 779, 284 NYS 109; Matter of Selle
[Lubin], 286 App Div 1058, 144 NYS2d 798; Leszczynski v
Pennsylvania R.R. Co., 274 App Div 1003, 84 NYS2d 579;
Griffin v Griffin, 231 App Div 819, 246 NYS 885; Joyce v
Katzberg, 213 App Div 883, 209 NYS 854; Scholing v
O'Conner, 209 App Div 839, 204 NYS 777; Jamaica Estates v
Smith, 177 App Div 882, 163 NYS 389; Matter of Reynolds, 23
AD2d 623, 257 NYS2d 368.) VI. The court properly excluded
the Town of Clarence's proposed expert. (Matter of Daubman
v Nassau County Civ. Serv. Commn., 195 AD2d 602, 601
NYS2d 14; Cahill v Harter, 277 AD2d 655, 716 NYS2d 447;
Puderbaugh v State Empls. Fed. Credit Union, 276 AD2d
992, 714 NYS2d 387; Fleet Bank v Powerhouse Trading
Corp., 267 AD2d 276, 700 NYS2d 53; Kadan v Volkswagen of
Am., 111 AD2d 540, 489 NYS2d 412; Oram v Capone, 206
Page 2 of 4
AD2d 839, 615 NYS2d 799; Telaro v Telaro, 25 NY2d 433,
255 NE2d 158, 306 NYS2d 920; Ryan v St. Francis Hosp., 62
AD3d 857, 878 NYS2d 786; Marwin v Top Notch Constr.
Corp., 50 AD3d 977, 856 NYS2d 238; Lucian v Schwartz, 55
AD3d 687, 865 NYS2d 643.) VII. Kieffer Enterprises, Inc.'s
objections are waived and unpreserved because it did not
object to the court's instruction to the jury. (Beltz v City of
Buffalo, 61 NY2d 698, 460 NE2d 1089, 472 NYS2d 604;
Brown v Concord Nurseries, Inc., 53 AD3d 1067, 863 NYS2d
314; Fitzpatrick & Weller, Inc. v Miller, 21 AD3d 1374, 802
NYS2d 292; Harris v Armstrong, 64 NY2d 700, 474 NE2d
1191, 485 NYS2d 523; Kerhonkson Lodge v State of New
York, 4 AD2d 575, 168 NYS2d 56; Noonan v City of Albany,
79 NY 470; Keller v State of New York, 19 Misc 2d 794, 194
NYS2d 358; Holmes v State of New York, 32 Misc 2d 1077,
226 NYS2d 626.)
Judges: Opinion by Chief Judge Lippman. Judges Graffeo,
Read, Smith and Pigott concur. Judge Rivera took no part.
Opinion by: LIPPMAN
Opinion
 [*509]  [**904]  [***70]  Chief Judge Lippman.
The question presented by this case is whether the evidence
was sufficient to find defendant liable for punitive damages
for intentional diversion of storm water onto plaintiff's [2] 
property, which caused extensive damage to his land,
constituting the torts of trespass and nuisance. We find that
although the injury was considerable and the tortious acts
undeniably intentional, the evidence in this case was
insufficient for an award of punitive damages.
Plaintiff Paul Marinaccio and defendant Kieffer Enterprises,
Inc. (KEI) are adjoining landowners in the Town of Clarence,
Erie County (Town). KEI was a small residential real estate
company, operated by 82-year-old Bernard Kieffer. KEI
sought to develop the second and third phases of a residential
subdivision on his land called "Lexington Woods" and began
the process of planning. KEI submitted a plan to the Town for
its approval. The approved plan required that water from the
west side of the development would [**905]  [***71]  flow
into a storm sewer and then  [****2] into a ditch, which was
to create a mitigation pond on the northeast section of
Lexington Woods. According to the Town Engineer, the ditch
was on KEI's property. But as the Town later discovered, this
ditch was actually located on plaintiff's property, and it was

Marinaccio v Town of Clarence
used without plaintiff's permission.
KEI also should have known that this ditch did not have the
capacity to contain the large amount of water that KEI
diverted. Worse, KEI's design of the mitigation pond
bordering plaintiff's property, the purpose of which was to
retain water and prevent it from discharging downstream, was
insufficient in size to handle the flow of water from the
surrounding area. To address the problem, KEI installed two
drainage pipes and routed the  [*510]  quickly rising water
into an abandoned farmer's furrow located on plaintiff's land,
again, without plaintiff's permission, resulting in over 30
acres of flooded wetland.
This newly created wetland caused mosquitos to breed and
frogs to gather on plaintiff's property, about which plaintiff is
particularly phobic. Consequently, plaintiff had problems
traversing his property without the assistance of his family
and friends, whom plaintiff would often call on to remove
[****3] frogs from his driveway and near the door of his
home.
Plaintiff personally contacted Bernard Kieffer about the
flooding, but was told that the flooding was "[not] his
problem." Plaintiff's counsel also sent a letter to Mr. Kieffer,
demanding assistance cleaning up the flooding, to which he
received no response. However, according to KEI, plaintiff
refused to allow the Town to clean out the ditch on his
property, which would have significantly alleviated the
flooding by allowing water to move through it more easily. In
fact, when the Town arrived to clean the ditch, plaintiff
became enraged and would not allow the Highway
Superintendent, or any of the Town's workers to enter his
property. Thereafter, the Town Engineer met with plaintiff to
discuss the Town's assistance with other remedial efforts, but
according to the Town and KEI, plaintiff again became
enraged and ordered him to leave. The Town admittedly made
no further efforts to clean the ditch.
Plaintiff commenced this action against KEI and the Town
alleging, among other things, trespass and nuisance and
seeking money damages for alleged intentional diversion of
water onto his property. KEI moved, at the close of proof, to
dismiss  [****4] the punitive damages claim [3]  against it
based on insufficiency of the evidence. The trial court denied
that motion. The jury returned a verdict of $1,313,600 for
plaintiff against the Town for compensatory damages. The
jury also awarded plaintiff $328,400 in compensatory
damages and $250,000 in punitive damages against KEI.
Following the denial of KEI's and the Town's posttrial
Page 3 of 4
motions, the parties settled all but the punitive damages
claim. KEI appealed that part of Supreme Court's judgment
against it which awarded $250,000 in punitive damages plus
interest. The Appellate Division affirmed (90 AD3d 1599, 936
NYS2d 412 [4th Dept 2011]). The majority characterized
KEI's argument as "a contention that the award of punitive
damages is not supported by legally sufficient evidence" (id.
at 1600) and concluded that a valid line  [*511]  of reasoning
did exist to support "the jury's conclusion that KEI's conduct
was sufficiently egregious to warrant an award of punitive
damages" (id.).
Two Justices dissented on the basis that "insufficient evidence
[existed] in this record that KEI was motivated by
maliciousness or vindictiveness or that KEI engaged in such
'outrageous or oppressive intentional misconduct' to warrant a
[****5] punitive damages award" (id. at 1604). [**906]   
[***72]  For the reasons expressed below, we now vacate the
award of punitive damages.
Because the standard for imposing punitive damages is a
strict one and punitive damages will be awarded only in
exceptional cases, the conduct justifying such an award must
manifest "spite or malice, or a fraudulent or evil motive on the
part of the defendant, or such a conscious and deliberate
disregard of the interests of others that the conduct may be
called wilful or wanton" (Dupree v Giugliano, 20 NY3d 921,
924, 982 NE2d 74, 958 NYS2d 312 [2012] [citation and
internal quotation marks omitted]). As conceded by plaintiff,
the trial court correctly charged the jury that punitive
damages may only be awarded if defendant's acts were,
"wanton and reckless or malicious. Punitive damages may be
awarded for conduct that represents a high degree of
immorality and shows such wanton dishonesty as to imply a
criminal indifference to civil obligations."
Plaintiff argues that KEI willfully and wantonly caused
danger to the health, safety and welfare of the public because
of the flooding. But the intent plaintiff would impute to KEI's
actions cannot find support in the record. The facts in
evidence do not demonstrate  [****6] that KEI's actions
"impl[ied] a criminal indifference to civil obligations."
Defendant complied with all federal, state and local planning
and development laws and regulations, and worked closely
with the US Army Corps of Engineers, the Town Engineer
and the Town Planner to secure all required permits and
approvals; it hired a wetlands expert, an engineering expert,
and soil expert to assist in those regards. Clearly, those
measures were ultimately unsuccessful in preventing damage
to surrounding property. However, this planning, if not
indicative of good faith, at least shows that KEI's actions
 Page 4 of 4
Marinaccio v Town of Clarence

could not be considered "wanton and reckless or malicious."

Certainly the Town and KEI's dealings with plaintiff and his
property were not [4]  ideal, and both defendants have been
held liable for compensatory damages for their transgressions.
Defendants knew that overflow would be a problem along the
[*512]  furrow bordering plaintiff's property, and the Town
told KEI that it would contact plaintiff regarding an easement
along his west property line. Although it is undisputed that the
Town did not obtain plaintiff's permission to allow water to
flow onto his property, it does not follow that the acts
resulting in overflow  [****7] onto plaintiff's property were
undertaken with the requisite malice or gross indifference.
KEI failed to ensure that the Town followed through with its
plan to obtain an easement, so that they were liable in
nuisance and trespass, but "[s]omething more than the mere
commission of a tort is always required for punitive
damages" (Prozeralik v Capital Cities Communications , 82
NY2d 466, 479, 626 NE2d 34, 605 NYS2d 218 [1993]
[internal quotation marks and citation omitted]). Punitive
damages are permitted only when a defendant purposefully
causes, or is grossly indifferent to causing, injury and
defendant's behavior cannot be said to be merely volitional;
an unmotivated, unintentional or even accidental result of a
legally intentional act cannot, alone, qualify (see Hartford
Acc. & Indemn. Co. v Village of Hempstead , 48 NY2d 218,
227-228, 397 NE2d 737, 422 NYS2d 47 [1979]). Punitive
damages are awarded to punish and deter behavior involving
moral turpitude (see Rose v Louise Wise Servs., Inc. , 8 NY3d
478, 489, 868 NE2d 189, 836 NYS2d 509 [2007]). Here,
KEI's behavior does not rise to that level.

Accordingly, the order of the Appellate Division should be

reversed, with costs, [**907]   [***73]  and that part of the
judgment awarding punitive damages vacated.

Judges Graffeo, Read, Smith and Pigott concur; Judge Rivera

taking no part.

Order reversed, with costs,  [****8] and that part of the

judgment awarding punitive damages vacated.

End of Document