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Clarence man with frog phobia wins $1.6 million verdict

Water runoff has turned most of Paul Marinaccio’s 40 acres in Clarence into a wetland.

How it happened angers him.

What came along with all that water terrifies him – frogs.

“I’m petrified of the little creatures,” said Marinaccio, 65.

If that sounds bizarre or far-fetched, consider one of Marinaccio’s childhood memories. He traces his deep-seated fear of frogs to when he was a child in an Italian vineyard, where his parents worked. He remembers wandering to a nearby property for figs and being chased away by a man holding bullfrogs.

Decades later, frogs again have Marinaccio on the run. In the spring and summer months, they show up on his driveway and lawn – keeping him inside his home. Marinaccio sued the Town of Clarence and the developer of a nearby subdivision for diverting runoff onto his land and won a $1.6 million award.

“I beat the government,” he said.

Marinaccio emigrated to the United States as a teenager in 1963, with just five years of schooling. But he learned to speak English and went to work at a gas station, farm and bakery to help support his parents. At 19, he started a construction company. The hard-working man became a self-made millionaire through his road construction companies, including Accadia Site Contracting.

He bought the Clarence land in 1998, and in 2003 he built a large home on the Lapp Road side of the parcel, about a mile and a half off Transit Road.

In 2000, water runoff from the bordering development was diverted onto his property.

Within a year, a few acres of his land was flooded. By 2006, the wetland grew to nearly 20 acres, and by 2009, it had grown to 37 acres.

Marinaccio’s seven-year court fight finally ended a couple of weeks ago, as the State Court of Appeals ruled he was not owed any punitive damages.

Even after more than $300,000 in legal bills, Marinaccio has still come out a winner in his legal fight against the town and Kieffer Enterprises, the development firm that he accused of intentionally diverting water onto his land. In addition to the damages he received, the town has agreed to dig a drainage channel along the edges of Marinaccio’s property to solve the drainage problem.

And what of the frogs?

Marinaccio hopes they go away.

Neither side knows for sure how Marinaccio’s frog phobia affected the case. But jurors who returned the verdict in his favor heard his startling testimony on the witness stand in 2009.

“You people don’t understand,” Marinaccio said in court. “I am petrified. I go home at night, and I can’t get in my garage because of the frogs. They’re right in front of the damn door, OK?”

He talked about how he had to call his grown daughter, who lives a few miles away, two or three nights a week to come over and shoo away the frogs.

“In the winter, it’s OK, because I know there’s no frogs,” he said. “But in the summertime, I mean I’m a damn prisoner in my own home.”

Once, when a town official asked to see his land, Marinaccio accompanied him – on his bulldozer.

Another time, he agreed to walk his land with Corps of Engineers officials.

“It was dry. They convinced me they would protect me from the frogs,” Marinaccio said.

Once, at a road construction site, Marinaccio paid one of his union workers $65 an hour to carry a bucket and catch frogs and remove them so he could work alongside his employees.

Last week, Marinaccio told The Buffalo News he soon would be unable to walk outside his home, assessed at $588,000.

“In another few weeks, you will not catch me opening my garage door if I see a frog,” Marinaccio said.

The Court of Appeals decision has upset him.

No punitive damages

The state’s highest court ruled Kieffer did not have to pay $250,000 in punitive damages the jury awarded.

Michael B. Powers, the lawyer for Bernard Kieffer, called the ruling “one of the most gratifying of my career.”

“The punitive damages would have been devastating to him,” Powers said of his 83-year-old client.

Powers handled Kieffer’s appeal of the punitive damages. Insurance company lawyers represented Kieffer and the town at the trial. Powers was hired after the trial solely on the issue of the punitive damages, and Kieffer prevailed at the Court of Appeals.

“We find that although the injury was considerable and the acts undeniably intentional, the evidence in this case was insufficient for an award of punitive damages,” the court ruled.

“I think the jury understood what happened. The Court of Appeals didn’t understand,” Marinaccio said of the ruling.

Marinaccio built his home on Lapp Road and intended to divide the rest of the land and sell the lots for homes.

“At the time he bought it, it was good, dry, buildable land,” Joseph J. Manna, Marinaccio’s lawyer, told jurors during the 2009 trial. “It is now a swamp. It’s a marsh. It’s a wetland.”

The jury awarded Marinaccio $1.3 million in compensatory damages from the Town of Clarence and $328,400 in compensatory damages against Kieffer.

The town’s insurance company paid the damages the town owed, settling with Marinaccio after he agreed to give up the 9 percent interest he was owed on the damages dating back to 2000. The interest was worth “a couple of million dollars,” Marinaccio said.

Marinaccio still bristles at what he sees as the town’s and developer’s disregard for him.

“They put a pipe from a mitigation pond on my property and the pipe drains the water right onto my property,” he said.

Problematic ditch

The runoff problem emerged as Kieffer developed the second and third phases of the Lexington Woods subdivision.

The Court of Appeals said the town-approved plan required water from Kieffer’s development to flow into a storm sewer and then into a ditch creating a mitigation pond.

Town officials first thought the ditch was on Kieffer’s land but later discovered it was on Marinaccio’s property, and that it was being used without his permission, according to the court decision.

What’s more, Kieffer should have known the ditch was not big enough to hold all the diverted water, the court said.

Kieffer installed drainage pipes and drained the water into an abandoned farmer’s furrow on Marinaccio’s land, again, without his permission, resulting in more than 30 acres of flooded wetland, according to the decision.

When Marinaccio contacted Bernard Kieffer about the flooding, Kieffer replied the flooding was not his problem, according to Manna, Marinaccio’s lawyer.

“He calls Mr. Kieffer and he says I’ve got a lot of water on my property that you’re putting there. Get the water off of my property. And Mr. Kieffer tells him, in 2006, it’s not my problem, it’s your problem,” Manna told the Court of Appeals during oral arguments.

Marinaccio said the town approached him with a plan to cut ditches across his land.

“I told them no,” he said.

Instead, he said he told them to cut ditches along the edges of his parcel.

“They could have done that. It probably would have cost them $30,000. That’s exactly what they’re going to do now,” he said.

At his trial, Marinaccio said he told the town he wanted pipes to carry the water because he did not want mosquitoes and frogs to breed on his property.

Marinaccio did some ditch work on his property. But it wasn’t enough to stop the water from flooding his land.

Given his occupation, Marinaccio could have done more. But he decided not to.

“They created the problem,” he said. “They should fix the problem they created.”

Marinaccio said he had no choice but to sue.

“I didn’t want to sue anybody,” he told jurors. “I just want them to get rid of the water on my property. I didn’t want to be here. I haven’t broken any laws.”

Marinaccio said he was mistreated by town officials.

“They looked at me like I was some dumb Italian, with no education, and could just roll over me,” he said. “They never thought I was going to win the case. You should have seen their faces the day of the verdict.”

But Powers, Kieffer’s lawyer, said Kieffer did what he was told by town officials to do.

Experts and engineers

At the Court of Appeals, Powers described Kieffer as someone “who has complied and spent tens of thousands of dollars on experts and engineers, submitted all his plans, all of his specifications.”

“He’s relying on his engineers,” Powers said. “They’re telling him that this is not going to put any more water on there than has typically been on there in the last ten years. The town says we’ll get any easement that we need for this. We approve all your plans. The Army Corps approves them all, the state approves them all. What more is there for Mr. Kieffer to do?”

Besides, if Marinaccio had simply maintained a ditch to handle the runoff or allowed town employees on his land to do so, his land would not have flooded, Powers said.

“The town repeatedly asked Mr. Marinaccio for permission to come in and clean the ditch and inspect it, and he threw the Highway Department off the property, threw the town engineer off the property,” Powers told the judges.

“It wasn’t the fault of the town or Mr. Kieffer that [the flooding] happened,” Powers told The News.

Marinaccio bears responsibility, Powers said. Ditches handled water runoff for years.

“This isn’t like he was living on a high and dry place, and all of a sudden it was flooded,” Powers said.

Marinaccio’s post-verdict agreement with the town calls for the town to dig ditches on the edges of his property, with water from the mitigation pond draining into a ditch on the side of his land. That should keep the runoff water off his land. It’s too soon to know if he will be able divide the land into lots for houses.

In the meantime, Marinaccio is already at work on a plan for his 40-acre spread when the water dries and the frogs leave.

This plan involves a much bigger animal.

“I’m going to put cows out there,” he said.