Storch v. Town of Cornwall

294 A.D.2d 426, 741 N.Y.S.2d 917, 2002 N.Y. App. Div. LEXIS 4900

Opinion

—In an action, inter alia, to recover for property damage, the defendant appeals from so much of an order of the Supreme Court, Orange County (McGuirk, J.), dated May 8, 2001, as denied that branch of its motion pursuant to CPLR 3211 (a) (1) and (7) which was to dismiss the first and second causes of action asserted in the complaint, among other things, for failure to state a cause of action.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied that branch of the defendant’s motion which was pursuant to CPLR 3211 (a) (1) and (7) to dismiss the plaintiffs first and second causes of ac tion, inter alia, for failure to state a cause of action (see CPLR 3211 [a] [7]). Accepting the facts as alleged in the complaint as true and affording the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83, 87; Farmer v Green Bus Lines, 254 AD2d 389, 390), the first cause of action, which seeks to recover for property damage the plaintiff allegedly suffered when certain real property owned by him was flooded, sufficiently alleges that the Town was negligent in failing to properly maintain and repair a certain drainage system near the property (see, Colgan v Town of Hillsdale, 68 NY2d 788, 789; Pet Prods, v City of Yonkers, 290 AD2d 546; Zeltmann v Town of Islip, 265 AD2d 407, 408; cf. Biernacki v Village of Ravena, 245 AD2d 656, 657).

The second cause of action, which seeks a permanent injunction, sufficiently alleges a cause of action based on nuisance and trespass premised on the plaintiff’s claims that the Town diverted storm and surface water onto his property, causing flooding (see Zimmerman v Carnack, 292 AD2d 601).

The Town’s remaining contentions are without merit. O’Brien, J.P., Friedmann, H. Miller and Crane, JJ., concur.