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Associated Press
Paul Marinaccio stand on his land and housing development in Clarence, N.Y.

Frog-phobic man awarded $1.6M over runoff flooding

CLARENCE, N.Y. — Paul Marinaccio Sr. traces his fear of frogs to a childhood incident in Italy when a man holding bullfrogs chased him away after he'd wandered from the vineyard where his parents worked.

Decades later, he found himself describing his phobia to a jury, calling himself "a prisoner in my own home" after runoff water from a nearby development turned his 40-acre property into wetlands and inundated it with frogs.

"I am petrified. I go home at night and I can't get in my garage because of the frogs," Marinaccio testified in 2009. "They're right in front of the damn door, OK?"

It was part of a seven-year legal fight involving Marinaccio, the town of Clarence and a developer that, according to The Buffalo News, finally ended last month when the state's highest court ruled that Marinaccio, who was awarded $1.6 million in compensation after the 2009 trial, is not entitled to an additional $250,000 in punitive damages.

Marinaccio sued Clarence, a Buffalo suburb, and Kieffer Enterprises Inc. after runoff diverted onto Marinaccio's property from a new Kieffer subdivision turned it into wetlands. A town engineer initially said the water would flow into a ditch elsewhere on Kieffer property. The town later discovered the ditch was actually on Marinaccio's property, and that it was too small to handle the flow of water.

Lawyers on both sides said Monday that Marinaccio's frog testimony amounted to just moments of a more than three-week trial — and may not have affected the jury's award. The Court of Appeals, however, referred to it in a five-page decision in which it determined that while Marinaccio had been wronged, the developer hadn't acted maliciously.

"This newly created wetland caused mosquitoes to breed and frogs to gather on plaintiff's property, about which plaintiff is particularly phobic," the court wrote in an opinion dated March 21. "Consequently, plaintiff had problems traversing his property without the assistance of his family and friends, whom plaintiff would often call on to remove frogs from his driveway and near the door of his home."

"I'm petrified of the little creatures," Marinaccio, 65, said in Monday's Buffalo News.

The lower court jury returned a verdict of $1.3 million against the town and $328,400 against Kieffer for compensatory damages, as well as $250,000 in punitive damages against Kieffer.

In reversing the punitive damages, the Court of Appeals said they are awarded only when there is evidence "of spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called willful or wanton."

As part of a post-verdict agreement, the town will dig ditches to help dry out Marinaccio's land.

The property owner told the newspaper his plans involve much bigger creatures than frogs.

"I'm going to put cows out there," Marinaccio said.

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