(dissenting). The Court of Claims has found that the claimants failed to establish facts sufficient to constitute a cause of action in negligence against the State of New York. The court further found that the flooding was due to abnormal rainfall from hurricanes “ Brenda ” and “ Cleo ”. The Bronx River was not altered or changed downstream from the project and its ability to carry off waterflow was the same during the construction as it was before construction. In fact, the extent to which the new channels upstream had been completed at the times of the flooding actually increased the upstream capacity to hold and carry surface water. There was undisputed evidence that in this area general flooding had occurred in the past. There was expert testimony that it would have occurred at the time it did regardless of the construction. The contention that the State was negligent by not performing *416downstream construction first was passed upon by the trial court as a question of fact and rejected. It would appear that the flooding was a result of an “ Act of God ” since the State has no control over the timing or presence of hurricanes which axe not a normal occurrence in Westchester County. I would affirm.
Greenblott, Cooke and Sweeney, JJ., concur with Herlihy P. J.; Reynolds, J., dissents and votes to affirm, in an opinion.
Judgment dismissing Claim No. 38321 filed by Bronxville Palmer, Ltd., reversed, on the law and the facts, and a new trial, limited to the question of damages, ordered, with costs. Order denying. motion to amend Claim No. 38321 affirmed, without costs. Judgments dismissing Claims Nos. 39036, 39037, 39038 and 39042 affirmed, without costs.