Mount Zion Ministries Church, Inc. v. Hines Color, Inc.

19 A.D.3d 1060, 797 N.Y.S.2d 231, 2005 N.Y. App. Div. LEXIS 6281

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 10, 2005
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Oneida County (Anthony F. Shaheen, J.), entered April 14, 2004. The order, insofar as appealed from, denied defendant’s cross motion seeking summary judgment dismissing the amended complaint.

It is hereby ordered that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs, the cross motion is granted and the amended complaint is dismissed.

Memorandum: Plaintiff commenced this action seeking damages based on, inter alia, the alleged failure of defendant, the owner of property adjacent to plaintiffs property, to install a proper drainage system. Supreme Court erred in denying defendant’s cross motion seeking summary judgment dismissing the amended complaint. A plaintiff “seeking to recover [from an abutting property owner for the flow of surface water] must establish that . . . improvements on the defendant’s land caused the surface water to be diverted, that damages resulted and either that artificial means were used to effect the diversion or that the improvements were not made in a good faith effort to enhance the usefulness of the defendant’s property” (Cottrell v Hermon, 170 AD2d 910, 911 [1991], lv denied 78 NY2d 853 [1991]). Here, defendant met its initial burden on the cross motion by establishing that the natural contour of its property, rather than improvements made by defendant thereto, caused the diversion of surface water onto plaintiffs land, and plaintiff failed to raise a triable issue of fact (see id.; cf. Osgood v Bucking-Reddy, 202 AD2d 920 [1994]; see generally Langdon v Town of Webster, 238 AD2d 888 [1997], lv denied 90 NY2d 806 [1997]). Present—Green, J.P., Hurlbutt, Scudder, Pine and Lawton, JJ.