ALBANY — A motion to dismiss a lawsuit filed by Normanside Country Club against the Town of Bethlehem following the April 2015 landslide was denied by the state Supreme Court Appellate Division on Tuesday, April 19.
The landside sent approximately 120,000 cubic yards of soil and debris both into Normans Kill Creek and onto Albany property on the opposite bank more than three years ago.
In May 2016, the City of Albany sued Normanside, Bethlehem, and other entities and individuals involved with placing an excess of “fill” on the upper portion of the slope on Normanside’s property that ultimately collapsed. Soon after, Normanside filed suit against the town, claiming town officials were aware of the condition of the slope yet ultimately approved a fill permit application without the usual safety requirements.
The first motion to dismiss—“for failure to state a cause of action”—was denied in fall of 2016. The town appealed, and the State of New York Supreme Court, Appellate Division Third Judicial Department rendered its decision to uphold the denial in the middle of April.
“The important thing about today’s decision is that the court has made no determination about who is responsible for the slope failure,” said Town Attorney James Potter, who is not directly handling the case, which he said has been assigned to an independent attorney by the town’s insurance carrier.
“The court had to assume that every fact that Normanside alleged in its complaint was true, and had to give Normanside the benefit of every favorable inference,” Potter said, explaining how the appellate court approaches such motions. “The decision simply means that Normanside can now move forward with its case, but it does not change the fact that Normanside still has the burden of proving each of its allegations.”
Normanside has alleged that a town engineer offered to “override” certain town-mandated requirements based on confidence in the slope’s integrity and didn’t require the country club to satisfy all mandated components of a fill permit
Normanside has further claimed that the town was aware of prior landslides in that area, and that the aforementioned engineer cited a study indicating that the local soil was prone to landslides sometime after the incident occurred. Regardless of this knowledge, the complaint alleges, he had suggested to third parties that they dispose of fill at the property, resulting in “catastrophic failure of the bank.”
“Accepting the complaint’s allegations as true,” reads the April 19 appellate decision, “plaintiffs established a special relationship because defendant knew that a blatant and dangerous safety violation existed on plaintiffs’ property and, notwithstanding this knowledge, affirmatively indicated that the fill activities were safe, and plaintiffs justifiably relied on these representations when they continued to deposit fill on the premises.”
While Potter was unsure what damages are being claimed by Normanside, he said that the direction of the case will be determined by the town’s insurance provider. “Normally,” he said, “the case proceeds to discovery, where documents are exchanged and witnesses are deposed.”
“I’m looking forward to the situation being resolved,” said Town Supervisor David VanLuven. “So everyone—the town, Normanside, the City of Albany—can move on.”
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