In the wake of THE CITY reporting the comptroller denied every single claim filed for damages from Hurricane Ida flooding, local elected officials and legal experts are considering how to fix a problem rooted in a legal precedent that’s over a hundred years old.
Thousands of New Yorkers whose houses and apartments suffered water damage from the storm on Sept. 1, 2021 had applied for financial compensation from the city, and all 4,703 received denial letters this week from the comptroller’s office.
The claims relied on the argument that City Hall negligence of sewer maintenance led to the flooding, which hit many areas the city knew were prone to severe backups.
But Comptroller Brad Lander denied them all after conducting investigations, according to a spokesperson. The signed rejection letters cited a 1907 court ruling that held government entities aren’t liable for damage from “extraordinary and excessive rainfalls.”
Meanwhile, local electeds in the neighborhoods affected point out that it was City Hall that told them to encourage flood victims to apply for help from the Comptroller’s Office in the first place — and climate experts say Ida-like rains aren’t “extraordinary” any more but indicative of a new normal.
On Thursday, Mayor Eric Adams deferred to Lander’s judgment while admitting the city’s sewers are substandard.
“The comptroller makes that determination. That is his job, to do the review,” he said. “We’re going to continue to do everything we must do to build out our sewer system and deal with how we’re dealing with floods and hurricanes like Ida. It’s going to take many years to rebuild our sewer system, but we’re going to continue to make those investments.”
In an earlier statement, Department of Environmental Protection spokesperson Ted Timbers also said the administration is committed to “bolstering sewer capacity, and strengthening other resiliency measures to mitigate the effects of future severe weather events.”
A Legal Opening?
But future fixes don’t do much for the renters and homeowners recently denied help by the city.
Court rulings in recent decades established that although a municipality may not be liable for negligent design of a sewer or storm drainage system, it can be held responsible for negligent maintenance, such as if the city failed to empty out the catch basins.
In his denial letters, Lander cited Holzhausen v. City of New York, which was decided by the Appellate Division of the State Supreme Court 115 years ago.
“The law itself is way more nuanced than that letter from Lander because if people can demonstrate that at least part of their damages come from negligent maintenance, they could potentially recover,” said Rebecca Bratspies, founding director of the Center for Urban Environmental Reform at the CUNY School of Law.
Then-mayoral candidate Eric Adams toured flooded houses on 183rd St in Queens after the storm last year.
Hiram Alejandro Durán/ THE CITY
Heidi Pashko, a Forest Hills resident and one of the 4,703 claimants denied, said she plans to appeal, but doesn’t know the next steps yet.
“I have no idea. I just got this letter yesterday, so I have no idea what’s involved,” Pashko said Tuesday. “I have to think on what the hell to do and all that other stuff. I don’t know.”
The comptroller’s office said it told claim-seekers in May that they had until one year and 90 days after “the incident” to file a lawsuit. That puts the deadline in November.
In a lawsuit, claimants could argue that the city failed to maintain the sewer system.
According to Sonya Chung, staff attorney in the environmental justice program at New York Lawyers for the Public Interest, the homeowners would have to prove that the city had notice of the dangerous conditions and “failed to make reasonable efforts” to inspect or fix the conditions that caused the damage.
“The city’s defense could be either that they had no notice of the dangerous condition, that they regularly inspected or maintained the sewer (and so weren’t negligent) or that the negligence, even if it existed, was not the cause of the damage,” Chung wrote in an email.
Arlene Diangkinay, an East Elmhurst homeowner who spent $60,000 rebuilding her basement after Ida, doesn’t think it’s likely she’ll sue the city.
“I’ve talked to my neighbors, and at this point we are beyond exhausted. Besides, we don’t have the resources,” she said Thursday. “Even if we fight it, we’re not gonna win. We know that. Why waste the energy?”
‘Hard to Believe’
Politicians representing flooded neighborhoods are calling for broader change — noting the blanket denials are particularly damning after the city encouraged residents to file claims.
Assemblymember Catalina Cruz, who represents parts of Queens that include hard-hit East Elmhurst, said officials from the office of former mayor Bill de Blasio pushed Cruz to help residents file claims with the comptroller for damage after the storm.
The neighborhood was so damaged that President Joe Biden went on a tour of some of the East Elmhurst homes days after the storm.
“My team worked to help dozens of neighbors file a claim, often speaking directly to the staff at the comptroller’s office for guidance,” she told THE CITY.
“You can imagine how shocked I was to learn that every single one of those claims, along with thousands of others, were denied by the comptroller.”
City Councilwoman Nantasha Williams, who represents oft-swamped parts of Queens including Hollis, said Tuesday that representatives from the DEP who testified this week at a Council hearing on flooding agreed that the city’s infrastructure, including sewers, was “long overdue for repair.”
“I find it hard to believe that the city absolved itself of having any liability in these claims; the main reason for the level of damage that was done to these homes was due to infrastructural issues,” Williams said in a statement.
According to Bratspies from CUNY Law, city or state lawmakers could create a plan to make sure people who suffered damage from sewer overflows get compensated.
They could also mandate the city make upgrades to the sewer system with a timeline attached.
“These are no longer ‘extraordinary and excessive rainfalls,’ but are what the city must plan for and protect against,” Bratspies said. “There’s what happened in Ida, and then there’s going forward. At what point is the city not only being negligent, but being grossly negligent, or reckless?”
