1735 University Avenue Associates LLC v. Andrews Development Corp.

92 A.D.3d 516, 938 N.Y.2d 428

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 14, 2012
• Status: Published

Opinion

The motion court did not improvidently exercise its discretion in granting reargument and determining that it had overlooked or misapprehended the relevant facts in arriving at its prior decision denying defendant’s cross motion for summary judgment in its entirety (see CPLR 2221 [d]; William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1992], lv dismissed in part and denied in part 80 NY2d 1005 [1992]). Dismissal of plaintiffs allegations regarding defendant’s alleged failure to abate the flow of water was proper since, as plaintiff concedes, the cause of the water run-off from defendant’s property to plaintiffs property is not the result of an improvement to defendant’s property, but rather is caused by the natural configuration of the land. In opposition to the motion, plaintiff failed to establish that the surface water was diverted by defendants through artificial means (see Kossoff v Rathgeb-Walsh, 3 NY2d 583, 589-590 [1958]; Congregation B’nai Jehuda v Hiyee Realty Corp., 35 AD3d 311, 312 [2006]). Concur — Tom, J.E, Andrias, Catterson, Richter and Abdus-Salaam, JJ.