O’Connell & Aronowitz Attorneys Preserved a $700k Victory for Local Client

On May 1, 2025, two of O&A’s appellate practice attorneys, Fran Smith and Dan Tuczinski, won a significant case for one of our clients.

In 2005, our client purchased a home that is situated on the top of a hill. The rear portion of his property, similar to other neighboring properties, slopes steeply down to and adjoins Boght Road, a town highway that runs behind the property. Because the slope is prone to slippage, the subdivision plans approved by the town included a steep slope line and provided that no permanent structures could be built beyond that line without a geotechnical analysis by a soils engineer being presented to the town. Shortly after purchasing the property, our client installed a retaining wall, an inground pool, a patio deck, a play area for children and an array of solar panels, for which the town issued building permits after our client submitted the requisite geotechnical engineering reports. In March 2017, the town started to clear a two- to three-foot drainage ditch running along Boght Road at the base of plaintiff’s property but failed to first obtain a geotechnical analysis.  The town’s excavation went well beyond the two- to three-foot drainage ditch and into the toe of the slope. The slope failed, and the improvements to our client’s backyard were destroyed. Following a nine-day trial, a jury verdict found the town solely liable for the damages caused to our client’s property and awarded $700,000 in restoration costs

The Town appealed, and O&A represented our client on the appeal. On May 1, 2025, the Appellate Division vindicated our client’s position.  The court rejected the town’s argument that it owed no duty to provide lateral support to our client’s property, holding that, although municipalities have no duty to preserve the lateral support to adjacent land in the construction and maintenance of highways and roads, they are liable for damages to adjoining property proximately caused by their negligence in construction and maintenance.  The court went on to analyze the expert engineering proof that our client offered at the trial and held that there was sufficient evidence to support the jury’s finding that the town was negligent and that our client was not negligent. The court also analyzed the expert proof offered by our client with respect to the damages done to his property and held that there was sufficient evidence to support the jury’s verdict of $700,000 in damages.

Although our client and his family have been without the backyard that they envisioned for the past eight years, we are pleased that the appellate court upheld the jury’s verdict in his favor.