Plaintiff commenced this action asserting causes of action for, inter alia, trespass and private nuisance and seeking damages for flooding on his property allegedly caused by the intentional flow of water onto his property. The water originated from a subdivision (hereafter, subdivision) developed by defendant Kieffer Enterprises, Inc. (KEI) on land adjacent to plaintiffs property located in defendant Town of Clarence (Town). Following a trial, the jury returned a verdict in favor of plaintiff on liability. The jury awarded plaintiff a total of $1,642,000 in compensatory damages, as well as punitive damages of $250,000 against KEI. In appeal No. 1, KEI appeals, as limited by its main brief, from that part of the judgment awarding plaintiff punitive damages against it. In appeal No. 2, KEI appeals from the order settling the record in appeal No. 1.
Addressing first the order in appeal No. 2, we agree with KEI that Supreme Court erred by excluding from the record the opposing papers and reply papers with respect to plaintiffs motion in limine seeking to preclude the testimony of an appraisal
Turning back to appeal No. 1, we view the points in KEI’s main brief that the court “erred in refusing to dismiss the punitive damages claim where no evidence was offered to prove that [KEI acted] intentionally, maliciously, or with near criminal intent” and that “the evidence offered by plaintiff [did not meet] the ‘strict’ standard of proving that [KEI] acted maliciously, willfully and with near criminal intent” as constituting a contention that the award of punitive damages is not supported by legally sufficient evidence. “ ‘[T]o recover punitive damages for trespass on real property, [a plaintiff has] the burden of proving that the trespasser acted with actual malice involving an intentional wrongdoing, or that such conduct amounted to a wanton, willful or reckless disregard of plaintiff’s] rights’ ” (Western N.Y. Land Conservancy, Inc. v Cullen, 66 AD3d 1461, 1463 [2009], appeal dismissed 13 NY3d 904 [2009], lv denied 14 NY3d 705 [2010], rearg denied 15 NY3d 746 [2010]; see West v Hogan, 88 AD3d 1247, 1249-1250 [2011]). To establish its entitlement to relief on its legal insufficiency contention, KEI “had to [demonstrate] . . . ‘that there [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’ ” (Winiarski v Harris [appeal No. 2], 78 AD3d 1556, 1557, quoting Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]).
Here, 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. The evidence presented at trial establishes that, in conjunction with the approval process for the third phase of the subdivision (hereafter, Phase III), KEI’s sole owner, Bernard G. Kieffer (Kieffer), retained an engineering firm to prepare plans for that part of the subdivision. Those plans included drainage calculations, which were intended to estimate the amount of water that would flow from the subdivision’s roads to storm sewers, and from there to a mitigation pond and into a shallow furrow that traversed plaintiffs property.
Prior to the development of Phase III, however, there were
The parties do not dispute that the Town and Kieffer did not obtain plaintiffs permission to allow water to flow onto his property, and Phase III was approved, subject to several conditions designed to facilitate drainage in the area, on June 21, 2000. During Phase III construction, KEI built a pond next to plaintiffs property, which was fed by storm sewers and drained by two 12-inch pipes that, according to Kieffer, were intended to release water into the furrow on plaintiffs property. Plaintiff testified at trial that the outflow pipes were installed approximately one foot inside his property line. According to the trial testimony of plaintiffs expert engineer, KEI routed more water from Phase III to plaintiffs property than was called for by its drainage plans.
After the construction of Phase III, the nature of plaintiffs property changed. Plaintiffs wetlands consultant testified at trial that he estimated that there were only six acres of wetland on plaintiffs property in 2001, and that the wetland subsequently expanded to the point that plaintiffs property contained 19.5 acres of wetland in 2006; 24.94 acres of wetland in 2008; and 30.23 acres of wetland by 2009. Moreover, plaintiff’s wetlands consultant observed a berm on part of plaintiffs property in 2006, which plaintiff had discovered in 2000 or 2001 and characterized as about 500 or 600 feet long. Plaintiffs 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. He concluded that migrating water on plaintiffs property was blocked by the berm, and that the growth of the wetland on plaintiffs property was due in part to the berm and in part to the presence of more water on the site. We conclude that the foregoing evidence is legally sufficient to allow the jury to conclude that KEI knowingly and intentionally disregarded plaintiffs property rights in a manner
Likewise, we reject KEI’s contention that the court erred in concluding that KEI’s failure to plead a drainage easement as an affirmative defense constituted a waiver thereof (see Cronk v Tait, 279 AD2d 857, 859 [2001]; see generally Griffith Energy, Inc. v Evans, 85 AD3d 1564, 1566 [2011]). The easement in question permitted the Town to maintain a drainage ditch on plaintiffs property “for the disposal and dispersal of surface waters from the adjoining premises,” but was considered for the first time on the first day of trial. Moreover, based on a land survey prepared by the Town in 1994 upon which plaintiff relied in purchasing his property in 1995, the easement was shown to be on the east side of plaintiffs property, i.e., the opposite side of the property where KEI drained water onto that land, and thus the easement is irrelevant to this case. Therefore, even assuming, arguendo, that KEI’s further contentions with respect to the easement are properly before us (see Murdoch v Niagara Falls Bridge Commn., 81 AD3d 1456, 1457 [2011], lv denied 17 NY3d 702 [2011]; see generally CPLR 5501 [a] [3]), we also conclude that those contentions lack merit.
KEI failed to preserve for our review its additional challenge to the court’s jury instruction to disregard evidence that KEI acted reasonably in reliance on engineers and good engineering practices (see CPLR 4110-b; Howlett Farms, Inc. v Fessner, 78 AD3d 1681, 1682 [2010], lv denied 17 NY3d 710 [2011]), as well as its challenge to the verdict sheet (see MacKillop v City of Syracuse, 48 AD3d 1197, 1198 [2008]). We decline KEI’s request to review those challenges and other unpreserved issues that it raises on appeal in seeking a new trial. First, that request is raised for the first time in KEI’s reply brief and thus is not properly before us (see Pieri v B&B Welch Assoc., 74 AD3d 1727, 1730 [2010]). Second, “[a] court should grant a new trial in the interest of justice ‘only if there is evidence that substantial justice has not been done ... as would occur, for example, where the trial court erred in ruling on the admissibility of evidence, there is newly discovered evidence, or there has been misconduct on the part of the attorneys or jurors’ ” (Butler v County of Chautauqua, 277 AD2d 964, 964 [2000]), and none of those circumstances is present here.
All concur except Scudder, EJ., and Peradotto, J., who dissent in part and vote to modify in accordance with the following memorandum.