Boardman v. Church of Transfiguration

Appellate Division of the Supreme Court of New York

Boardman v. Church of Transfiguration

82 A.D.3d 1695, 919 N.Y.2d 435

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 25, 2011

DocketAppeal No. 3

StatusPublished

This text of 82 A.D.3d 1695 (Boardman v. Church of Transfiguration) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Boardman v. Church of Transfiguration, 82 A.D.3d 1695, 919 N.Y.2d 435 (N.Y. Ct. App. 2011).

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Opinion

Memorandum: Plaintiff commenced this action seeking injunctive relief and monetary damages based upon water damage to her property allegedly caused by the construction and expansion of defendant’s building and parking lot. Supreme Court properly granted that part of defendant’s motion seeking summary judgment dismissing the third cause of action, for trespass. Defendant met its initial burden of establishing that it did not intend to cause water to enter onto plaintiffs property (see Theofilatos v Koleci, 105 AD2d 514 [1984]), and plaintiff failed to raise a triable issue of fact in opposition (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The court erred, however, in granting those parts of the motion seeking summary judgment dismissing the first and second [1696]*1696causes of action, for a permanent injunction and damages based on private nuisance, respectively. Defendant established its entitlement to judgment as a matter of law dismissing those causes of action (see Langdon v Town of Webster, 238 AD2d 888 [1997], lv denied 90 NY2d 806 [1997]). Plaintiff, however, raised a triable issue of fact whether the drainage system installed by defendant in connection with the improvements to its property caused the diversion of surface water onto plaintiffs property (cf id.). We therefore modify the judgment accordingly. Present — Scudder, EJ., Peradotto, Lindley and Green, JJ.

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Memorandum: Plaintiff commenced this action seeking injunctive relief and monetary damages based upon water damage to her property allegedly caused by the construction and expansion of defendant’s building and parking lot. Supreme Court properly granted that part of defendant’s motion seeking summary judgment dismissing the third cause of action, for trespass. Defendant met its initial burden of establishing that it did not intend to cause water to enter onto plaintiffs property (see Theofilatos v Koleci, 105 AD2d 514 [1984]), and plaintiff failed to raise a triable issue of fact in opposition (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The court erred, however, in granting those parts of the motion seeking summary judgment dismissing the first and second [1696]*1696causes of action, for a permanent injunction and damages based on private nuisance, respectively. Defendant established its entitlement to judgment as a matter of law dismissing those causes of action (see Langdon v Town of Webster, 238 AD2d 888 [1997], lv denied 90 NY2d 806 [1997]). Plaintiff, however, raised a triable issue of fact whether the drainage system installed by defendant in connection with the improvements to its property caused the diversion of surface water onto plaintiffs property (cf id.). We therefore modify the judgment accordingly. Present — Scudder, EJ., Peradotto, Lindley and Green, JJ.

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Bluebook (online)

82 A.D.3d 1695, 919 N.Y.2d 435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boardman-v-church-of-transfiguration-nyappdiv-2011.

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