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Residents, township may join lawsuit
(by Maggie Fazeli Fard - May 07, 2008)
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For more information
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Kevin Mulhearn
60 Dutch Hill Road, Suite 8
Orangeburg, N.Y.
10962
845-398-0361
Richard Van Bruggen
Rockland R.A.F.T.
(Residents Against Flooding Tomorrow)
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More than 50 River Vale residents swarmed Town Hall Monday night, eager to learn more about piggybacking on a multi-million dollar, mass-action lawsuit filed in Rockland County against United Water for allegedly negligent actions during a severe two-day storm last April.
The message they received was hopeful: Not only are River Vale residents invited to join the lawsuit, their involvement will bolster chances of winning in court.
“You have a stronger case than the people in West Nyack,” said Kevin Mulhearn, the Orangeburg-based attorney who filed a $60 million lawsuit on behalf of 35 West
Nyack, N.Y. home and business owners last month. “Most of you aren’t in the flood plain. Most of you probably didn’t have flood insurance. The case in River Vale significantly helps our case.”
According to the West Nyack complaint, filed in the New York State Supreme Court in
New City , United Water was negligent in not releasing water before the storm despite ominous weather forecasts and the reservoir’s being filled to capacity. The complaint also alleges that faulty equipment prevented the company from effectively monitoring water levels and knowing how much water was being released.
Mulhearn said that the case will revolve around a “simple standard” that more water was released by United Water from
Lake
DeForest and
Lake
Tappan into the
Hackensack
River and neighboring areas than came in during the nor’easter that hit the area on April 15 and 16, 2007. “The question is,” he said, “Can we prove it?”
Mulhearn is confident that the answer to that question is “Yes.” The basis of his argument is that before the
Lake
Tappan dam was constructed in 1965, the maximum peak flow in the
Hackensack
River was 1,500 cubic feet per second. Since 1965, said Mulhearn, there have been numerous instances in which the flow has exceeded 1,500 cubic feet per second, and on April 16, 2007, the peak flow reached “off-the-charts levels,” hitting 4,380 cubic feet per second.
“It’s going to be a battle of scientific experts,” said Mulhearn, whose firm recently engaged California-based water resources engineer Richard Bruggen as the hydrology expert in this case. “I got the best.”
Additionally, Mulhearn will hire real estate experts to appraise before and after values of the damaged homes.
Mulhearn said that there is the option of filing a second complaint on behalf of River Vale residents in New Jersey, but he recommended amending the complaint already filed in
New York in an effort to save time and money. Another reason, he said, is that United Water is a New York-based utility and
Lake
DeForest and
Lake
Tappan are both located in
New York .
But Mulhearn said his best reason for adding River Vale residents on to the existing plan is that “United Water has a horrendous reputation in
Rockland
County . We think
Rockland is going to give a very good verdict if it goes to a jury, which we think it will. That’s why I’d like to file in
Rockland .”
Mulhearn added that his firm will entertain the prospect of taking on clients from municipalities other than
West Nyack and River Vale.
To become involved in the litigation, each plaintiff must fill out a fact sheet detailing their nor’easter experience and damage as well as pay a one-time $3,000 retainer fee. The estimated cost of the case, which Mulhearn expects will take two to three years including a possible appeal, is $100,000.
“But we’re not going to come back in a year, in 18 months, and say, ‘Folks, we need more money,’” said Mulhearn. “We’ll cover it. We like our chances of winning this case.”
If the homeowners prevail and United Water appeals the verdict, Mulhearn’s firm will cover the cost. If United Water prevails, homeowners who wish to proceed with an appeal will have to sign a new contract and pay a new retainer fee.
Mulhearn’s firm will receive one-third of whatever is awarded and homeowners will take home two-thirds minus what they claimed from FEMA and insurance, if anything.
United Water’s answer to the
West Nyack complaint is due next week, and Mulhearn asked that interested River Vale residents contact him as soon as possible so that the complaint can be amended and re-filed in two weeks. Mulhearn will schedule private meetings with every plaintiff, either individually or as groups, in the coming weeks.
Mulhearn also encouraged River Vale residents to visit www.rocklandraft.com, a Web site created by a group known as Rockland R.A.F.T. (Residents Against Flooding Tomorrow) as a way to share documents, reports, photos and other information pertaining to flooding in the West Nyack area.
The
Township of
River Vale has also expressed interest in joining the lawsuit with hopes of recovering damages that include overtime charges for police and emergency services personnel, the cost of boat rescues, engineering fees and DPW charges to clean roads and repair fields.
“There are a multitude of real damage claims,” said Township Attorney Holly Schepisi.
The mayor and council is slated to discuss taking legal action during closed session next Monday at the May 12 meeting.
“Our position won’t be weakened at all [without the township],” noted Mulhearn. “There’s no downside. We’ll go forward without them aggressively.”
Numerous residents in attendance did point out other factors, however, that could weaken Mulhearn’s position. United Water has never lost a flood case and residents anticipate that the utility will pay whatever necessary to avoid settling the case and setting a precedent.
“United Water’s a deep pocket,” conceded Mulhearn. “It’s
Suez . They can attempt to litigate us into submission. But that doesn’t sit well with my office. I’ll lose money if I lose this case, and I don’t plan on losing money… I want to take them down.”
Mayor Joseph Blundo, who attended the meeting with members of the council, asked Mulhearn if United Water is found guilty of negligence, what could be done to prevent this situation from occurring again?
“You have to think, this is a lawsuit… for tens of millions of dollars,” said Mulhearn. “From pure, hard economic sense, United Water has an incentive to prevent this from happening again.”
Maggie Fazeli Fard's e-mail address is fazelifard@northjersey.com.
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