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DOCKET NUMBER: LLI-CV-14-6009898-S SUPERIOR COURT
ANN MARIE NONKIN J.D. OF LITCHFIELD
V. AT LITCHFIELD
MICHAEL PESCHEL, ET AL JULY 8, 2014
ANSWER AND SPECIAL DEFENSES
The Defendants Michael Peschel and Judy Peschel hereby respond to Plaintiff's
Revised Complaint (relative to the counts that pertain to the Defendants Peschel only) of June
6, 2014 as follows:
ANSWER
AS TO THE FIRST COUNT:
4
The Defendants are without sufficient information to form an opinion as to the
truth of this allegation and, accordingly, deny it and leave the Plaintiff to her proof.
2 Admitted.
3 The Defendants are without sufficient information to form an opinion as to the
truth of this allegation and, accordingly, deny it and leave the Plaintiff to her proof.
4 Denied.
5. Denied
6 Denied
Denied
Denied
AS TO THE SECOND COUNT:
1 The Defendants are without sufficient information to form an opinion as to the
truth of this allegation and, accordingly, deny it and leave the Plaintiff to her proof.
2 Admitted.
3 Denied.
4 Denied.
AS TO THE THIRD COUNT:
1.-8. The answers to Paragraphs 1 through 8 of the First Count are hereby made the
answers to Paragraphs 1 through 8 of the Third Count as if fully set forth herein.
9.-10. The answers to Paragraphs 3 and 4 of the Second Count are hereby made the
answers to Paragraphs 9 and 10 of the Third Count as if fully set forth herein.
11 Denied
12 Denied
13 Denied
14 Denied
15 Denied
16 Denied
AS TO THE FOURTH COUNT:
1.-8. The answers to Paragraphs 1 through 8 of the First Count are hereby made the
answers to Paragraphs 1 through 8 of the Fourth Count as if fully set forth herein.
9.-10. The answers to Paragraphs 3 through 4 of the Second Count are hereby made
the answers to Paragraphs 9 and 10 of the Fourth Count as if fully set forth herein.
11.-16. The answers to Paragraphs 11 through 16 of the Third Count are hereby made
the answers to Paragraphs 11 through 16 of the Fourth Count as if fully set forth herein.
[There are no paragraphs 17 and 18]
19. Denied.
SPECIAL DEFENSES
FIRST SPECIAL DEFENSE:
1 The Plaintiff is the owner of real property situated on the easterly side of the
Defendants’ property; the westerly side of the Defendants’ property; and the southerly side of
the Defendants’ property.
2 Due to the natural topography of the land, surface water drains naturally from the
Plaintiffs property located easterly of the Defendants’ property onto the Defendants’ property.
3 The Plaintiff's residence is situated on the Plaintiff's property directly southerly of
the Defendants property.
4 The natural topography is such that surface water naturally runs from the
Defendants’ property downhill to the Plaintiff's property.
5 If the flooding event of which the Plaintiff complains in her Complaint was caused
by surface water runoff, which is specifically denied, then the Plaintiff substantially contributed
to the surface water runoff problem of which she complains by taking no steps to abate the
surface water runoff that runs directly from the Plaintiff's property situated easterly of the
Defendants’ property onto the Defendants’ property, and thereafter onto the Plaintiff's property
situated southerly of the Defendants’ property.
SECOND SPECIAL DEFENSE:
1 The Plaintiff has either created, or in the alternative permitted to exist, on her
property certain improvements that have substantially contributed to any surface water runoff
problem at the Plaintiff's residence.
2 In this regard, the Plaintiff has permitted a wall to exist on her property easterly of
the Defendants’ property, which diverts a substantial quantity of water that flows from Route 44
onto the Plaintiff's property easterly of the Defendants’ property, onto the Defendants’ property,
after which it runs directly southerly toward the Plaintiff's property and residence.
3 In addition to the foregoing, the Plaintiff has within the last few years repaved her
driveway without properly grading such driveway to ensure that surface water, particularly from
Route 44 and that portion of the Plaintiff's property westerly of the Defendants’ property, would
be directed away from her residence rather than toward her residence.
4. At such time as the Plaintiff repaved her driveway, she took no steps to
remediate a surface water runoff drain such that such drain could effectively divert water away
from her residence. To the contrary, she allowed the drain, which is undersized for the surface
water it purports to divert, to remain in a location in her driveway where it actually permits an
accumulation of water that runs directly toward her residence, rather than diverting such water
away from her residence.
5. The Plaintiff has a right of way across the Defendants’ property, which the
Plaintiff seldom uses, but wishes to maintain. However, the Plaintiff insists that such right of
way include concrete pavers, which directly divert surface water from the Defendants’ property
downhill onto the Plaintiff's property, thereby increasing the surface water runoff to the
Plaintiff's property.
6 Such right of way also contained one or more horizontal permanent structures
similar to speed bumps to abate the flow of water directly down the right of way toward the
Plaintiff's residence. The Plaintiff, as the owner of the right of way, had the right to maintain the
right of way for her use. However, the Plaintiff failed to maintain the right of way, resulting in
the natural accumulation of materials washed by surface water runoff down the right of way
toward the bumps, mitigating their effectiveness to abate water flowing naturally toward the
Plaintiffs residence and enhancing the likelihood of water accumulating at or near the
Plaintiff's residence.
7 The Plaintiff has resisted efforts to remove the impervious surfaces in the right of
way, notwithstanding the fact that the Plaintiff would retain the right to use the right of way,
surface water directed toward the Plaintiff's property would be lessened, and the Plaintiff has a
newly paved driveway that permits her ingress and egress from her residence to CT Route 44,
the nearest public road.
8 Despite the Plaintiff's knowledge that surface water naturally flows toward her
residence from (a) the Defendants’ property, (b) property owned by the Plaintiff easterly of the
Defendants’ property, (c) Route 44, and (d) the property on the north side of Route 44, the
Plaintiff has refused to take any remedial steps on her own property to abate the natural
surface water runoff that flows toward her residence.
9 If the flooding event referenced in the Plaintiffs Complaint was caused by
surface water runoff, which is expressly denied, the Plaintiff's negligence in the management
of her own property, and the surface water runoff she should expect to receive at her property,
rather than the conduct of the Defendants, was the proximate cause of the flooding incident.
THIRD SPECIAL DEFENSE:
4
The Plaintiff has resided at her residence for approximately fifteen years, during
which time there was only one occasion when she was subjected to flooding in her basement.
2 On the one occasion when the Plaintiff was subjected to flooding in her
basement, there had been a succession of severe rainstorms over a relatively short period of
time that caused the ground in the general vicinity of the Plaintiff's residence to be saturated,
and which caused the water table in the general vicinity of the Plaintiff's residence to rise
nearly to the surface.
3 The Plaintiff's property contains natural springs that substantially contribute to the
accumulation of water on the Plaintiff's property, which water originates on the Plaintiff's
property, and does not run from the Defendants’ property onto the Plaintiff's property.
4 The soil types in the general vicinity of the Plaintiff's residence, and particularly
on the Plaintiffs property, are of poor quality for surface and subsurface water absorption, and
substantially contribute to the ponding of water on the Plaintiff's property.
5 The flooding incident that is the subject of the Plaintiff's Complaint occurred when
a substantial quantity of water entered the Plaintiff's basement through her floor drain and
sump pump pit, thereby causing the damage complained of in the Plaintiff's Complaint.
6 The flooding incident that is the subject of the Plaintiff's Complaint was not
caused by surface water runoff, or any conduct of the Defendants, but instead was caused by
a natural rise in the water table, which directly caused the flooding in the Plaintiff's basement
about which she complains.
FOURTH SPECIAL DEFENSE:
1.-5. Paragraphs 1 through 5 of the First Special Defense are hereby made
Paragraphs 1 through 5 of the Fourth Special Defense as if fully set forth herein.
6.-14. Paragraphs 1 through 9 of the Second Special Defense are hereby made
Paragraphs 6 through 14 of the Fourth Special Defense as if fully set forth herein.
15.-20. Paragraphs 1 through 6 of the Third Special Defense are hereby made
Paragraphs 15 through 20 of the Fourth Special Defense as if fully set forth herein.
21. The cumulative effect of the foregoing, rather than any conduct of the
Defendants, caused the loss of which the Plaintiff complains herein.
DEFENDANTS PESCHEL
BY
Willi C, Franklin#100205
For Cramer & Anderson, LLP
Their Attorneys
CERTIFICATION OF SERVICE
| hereby certify that a copy of the foregoing was sent to all counsel and pro se parties of
record via e-mail as set forth below on July 8, 2014:
Email: weonti contile law.com
William A. Conti, Esq.
Conti & Levy
P.O. Box 239
Torrington, CT 06790-0239
Email: ponziani@litchfieldcavo.com
Peter John Ponziani, Esq.
82 Hopmeadow Street, Suite 210
Simsbury, CT 06089
William C. Franklin#100205
g 4 Commissioner Superior Court
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DOCKET NUMBER: LLI-CV-14-6009898-S SUPERIOR COURT ANN MARIE NONKIN J.D. OF LITCHFIELD V. AT LITCHFIELD MICHAEL PESCHEL, ET AL JULY 8, 2014 ANSWER AND SPECIAL DEFENSES The Defendants Michael Peschel and Judy Peschel hereby respond to Plaintiff's Revised Complaint (relative to the counts that pertain to the Defendants Peschel only) of June 6, 2014 as follows: ANSWER AS TO THE FIRST COUNT: 4 The Defendants are without sufficient information to form an opinion as to the truth of this allegation and, accordingly, deny it and leave the Plaintiff to her proof. 2 Admitted. 3 The Defendants are without sufficient information to form an opinion as to the truth of this allegation and, accordingly, deny it and leave the Plaintiff to her proof. 4 Denied. 5. Denied 6 Denied Denied Denied AS TO THE SECOND COUNT: 1 The Defendants are without sufficient information to form an opinion as to the truth of this allegation and, accordingly, deny it and leave the Plaintiff to her proof. 2 Admitted. 3 Denied. 4 Denied. AS TO THE THIRD COUNT: 1.-8. The answers to Paragraphs 1 through 8 of the First Count are hereby made the answers to Paragraphs 1 through 8 of the Third Count as if fully set forth herein. 9.-10. The answers to Paragraphs 3 and 4 of the Second Count are hereby made the answers to Paragraphs 9 and 10 of the Third Count as if fully set forth herein. 11 Denied 12 Denied 13 Denied 14 Denied 15 Denied 16 Denied AS TO THE FOURTH COUNT: 1.-8. The answers to Paragraphs 1 through 8 of the First Count are hereby made the answers to Paragraphs 1 through 8 of the Fourth Count as if fully set forth herein. 9.-10. The answers to Paragraphs 3 through 4 of the Second Count are hereby made the answers to Paragraphs 9 and 10 of the Fourth Count as if fully set forth herein. 11.-16. The answers to Paragraphs 11 through 16 of the Third Count are hereby made the answers to Paragraphs 11 through 16 of the Fourth Count as if fully set forth herein. [There are no paragraphs 17 and 18] 19. Denied. SPECIAL DEFENSES FIRST SPECIAL DEFENSE: 1 The Plaintiff is the owner of real property situated on the easterly side of the Defendants’ property; the westerly side of the Defendants’ property; and the southerly side of the Defendants’ property. 2 Due to the natural topography of the land, surface water drains naturally from the Plaintiffs property located easterly of the Defendants’ property onto the Defendants’ property. 3 The Plaintiff's residence is situated on the Plaintiff's property directly southerly of the Defendants property. 4 The natural topography is such that surface water naturally runs from the Defendants’ property downhill to the Plaintiff's property. 5 If the flooding event of which the Plaintiff complains in her Complaint was caused by surface water runoff, which is specifically denied, then the Plaintiff substantially contributed to the surface water runoff problem of which she complains by taking no steps to abate the surface water runoff that runs directly from the Plaintiff's property situated easterly of the Defendants’ property onto the Defendants’ property, and thereafter onto the Plaintiff's property situated southerly of the Defendants’ property. SECOND SPECIAL DEFENSE: 1 The Plaintiff has either created, or in the alternative permitted to exist, on her property certain improvements that have substantially contributed to any surface water runoff problem at the Plaintiff's residence. 2 In this regard, the Plaintiff has permitted a wall to exist on her property easterly of the Defendants’ property, which diverts a substantial quantity of water that flows from Route 44 onto the Plaintiff's property easterly of the Defendants’ property, onto the Defendants’ property, after which it runs directly southerly toward the Plaintiff's property and residence. 3 In addition to the foregoing, the Plaintiff has within the last few years repaved her driveway without properly grading such driveway to ensure that surface water, particularly from Route 44 and that portion of the Plaintiff's property westerly of the Defendants’ property, would be directed away from her residence rather than toward her residence. 4. At such time as the Plaintiff repaved her driveway, she took no steps to remediate a surface water runoff drain such that such drain could effectively divert water away from her residence. To the contrary, she allowed the drain, which is undersized for the surface water it purports to divert, to remain in a location in her driveway where it actually permits an accumulation of water that runs directly toward her residence, rather than diverting such water away from her residence. 5. The Plaintiff has a right of way across the Defendants’ property, which the Plaintiff seldom uses, but wishes to maintain. However, the Plaintiff insists that such right of way include concrete pavers, which directly divert surface water from the Defendants’ property downhill onto the Plaintiff's property, thereby increasing the surface water runoff to the Plaintiff's property. 6 Such right of way also contained one or more horizontal permanent structures similar to speed bumps to abate the flow of water directly down the right of way toward the Plaintiff's residence. The Plaintiff, as the owner of the right of way, had the right to maintain the right of way for her use. However, the Plaintiff failed to maintain the right of way, resulting in the natural accumulation of materials washed by surface water runoff down the right of way toward the bumps, mitigating their effectiveness to abate water flowing naturally toward the Plaintiffs residence and enhancing the likelihood of water accumulating at or near the Plaintiff's residence. 7 The Plaintiff has resisted efforts to remove the impervious surfaces in the right of way, notwithstanding the fact that the Plaintiff would retain the right to use the right of way, surface water directed toward the Plaintiff's property would be lessened, and the Plaintiff has a newly paved driveway that permits her ingress and egress from her residence to CT Route 44, the nearest public road. 8 Despite the Plaintiff's knowledge that surface water naturally flows toward her residence from (a) the Defendants’ property, (b) property owned by the Plaintiff easterly of the Defendants’ property, (c) Route 44, and (d) the property on the north side of Route 44, the Plaintiff has refused to take any remedial steps on her own property to abate the natural surface water runoff that flows toward her residence. 9 If the flooding event referenced in the Plaintiffs Complaint was caused by surface water runoff, which is expressly denied, the Plaintiff's negligence in the management of her own property, and the surface water runoff she should expect to receive at her property, rather than the conduct of the Defendants, was the proximate cause of the flooding incident. THIRD SPECIAL DEFENSE: 4 The Plaintiff has resided at her residence for approximately fifteen years, during which time there was only one occasion when she was subjected to flooding in her basement. 2 On the one occasion when the Plaintiff was subjected to flooding in her basement, there had been a succession of severe rainstorms over a relatively short period of time that caused the ground in the general vicinity of the Plaintiff's residence to be saturated, and which caused the water table in the general vicinity of the Plaintiff's residence to rise nearly to the surface. 3 The Plaintiff's property contains natural springs that substantially contribute to the accumulation of water on the Plaintiff's property, which water originates on the Plaintiff's property, and does not run from the Defendants’ property onto the Plaintiff's property. 4 The soil types in the general vicinity of the Plaintiff's residence, and particularly on the Plaintiffs property, are of poor quality for surface and subsurface water absorption, and substantially contribute to the ponding of water on the Plaintiff's property. 5 The flooding incident that is the subject of the Plaintiff's Complaint occurred when a substantial quantity of water entered the Plaintiff's basement through her floor drain and sump pump pit, thereby causing the damage complained of in the Plaintiff's Complaint. 6 The flooding incident that is the subject of the Plaintiff's Complaint was not caused by surface water runoff, or any conduct of the Defendants, but instead was caused by a natural rise in the water table, which directly caused the flooding in the Plaintiff's basement about which she complains. FOURTH SPECIAL DEFENSE: 1.-5. Paragraphs 1 through 5 of the First Special Defense are hereby made Paragraphs 1 through 5 of the Fourth Special Defense as if fully set forth herein. 6.-14. Paragraphs 1 through 9 of the Second Special Defense are hereby made Paragraphs 6 through 14 of the Fourth Special Defense as if fully set forth herein. 15.-20. Paragraphs 1 through 6 of the Third Special Defense are hereby made Paragraphs 15 through 20 of the Fourth Special Defense as if fully set forth herein. 21. The cumulative effect of the foregoing, rather than any conduct of the Defendants, caused the loss of which the Plaintiff complains herein. DEFENDANTS PESCHEL BY Willi C, Franklin#100205 For Cramer & Anderson, LLP Their Attorneys CERTIFICATION OF SERVICE | hereby certify that a copy of the foregoing was sent to all counsel and pro se parties of record via e-mail as set forth below on July 8, 2014: Email: weonti contile law.com William A. Conti, Esq. Conti & Levy P.O. Box 239 Torrington, CT 06790-0239 Email: ponziani@litchfieldcavo.com Peter John Ponziani, Esq. 82 Hopmeadow Street, Suite 210 Simsbury, CT 06089 William C. Franklin#100205 g 4 Commissioner Superior Court