Opinion
02-06-2015
Michael M. KROSSBER and Deborah M. Krossber, Plaintiffs–Appellants, v. James CHERNISS and Mary S. Cherniss, Defendants–Respondents.
Zimmerman & Tyo, Attorneys, Shortsville (John E. Tyo of Counsel), for Plaintiffs–Appellants. Goris & O'Sullivan, LLC, Cazenovia (Mark D. Goris of Counsel), for Defendants–Respondents.
Zimmerman & Tyo, Attorneys, Shortsville (John E. Tyo of Counsel), for Plaintiffs–Appellants.
Goris & O'Sullivan, LLC, Cazenovia (Mark D. Goris of Counsel), for Defendants–Respondents.
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.
Opinion
MEMORANDUM:Plaintiffs commenced this action seeking injunctive relief and monetary damages based upon damage to their property allegedly caused by defendants' diversion of additional surface water onto plaintiffs' property. Supreme Court erred in granting defendants' motion for summary judgment dismissing the 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’ ” (Villafrank v. David N. Ross, Inc., 120 A.D.3d 935, 936, 991 N.Y.S.2d 823 ; see Kossoff v. Rathgeb–Walsh, 3 N.Y.2d 583, 589–590, 170 N.Y.S.2d 789, 148 N.E.2d 132 ). Here, defendants established that their improvements were made in good faith, but they admitted that they constructed a berm on their property, which may be considered an artificial means of diverting water (see Long v. Sage Estate Homeowners Assn., Inc., 16 A.D.3d 963, 965–966, 792 N.Y.S.2d 219, lv. dismissed in part and denied in part 5 N.Y.3d 756, 801 N.Y.S.2d 247, 834 N.E.2d 1257 ). Defendants thus failed to meet their initial burden of establishing that water was not diverted onto plaintiffs' property by artificial means (see Villafrank, 120 A.D.3d at 936, 991 N.Y.S.2d 823 ). The issue “whether the berm ‘so changed, channeled or increased the flow of surface water onto plaintiff[s'] land as to proximately cause damage[ ] to the property’ ” cannot be determined on this motion for summary judgment (Long, 16 A.D.3d at 965, 792 N.Y.S.2d 219 ).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied and the complaint is reinstated.