Olympia v. Town of Poughkeepsie

23 A.D.3d 445, 805 N.Y.S.2d 575

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 14, 2005
• Status: Published

Opinion

In an action to recover for damage to property, the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Brands, J.), dated November 8, 2004, which granted the motion of the defendant Town of Poughkeepsie for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed, with costs.

The Supreme Court properly granted the motion of the defendant Town of Poughkeepsie for summary judgment dismissing the complaint insofar as asserted against it. The Town established its prima facie entitlement to judgment as a matter of law as to the negligence cause of action by demonstrating that it inspected the plaintiffs’ flooded property on several occasions, using two separate tests to search for a municipal water leak, and found none (see Biancaniello v Town of Colonie, 261 App Div 161 [1941]). The plaintiffs’ remaining causes of action, to recover damages for trespass and nuisance, likewise fail (accord Kaplan v Incorporated Vil. of Lynbrook, 12 AD3d 410, 411-412 [2004]). .

In view of the foregoing, we do not reach the parties’ remaining contentions. H. Miller, J.P., Cozier, Ritter and Dillon, JJ., concur.