Opinion
November 9, 1998
Appeal from the Supreme Court, Dutchess County (Jiudice, J.).
Ordered that the order and judgment is reversed, with costs, the motion for summary judgment is denied, and the complaint is reinstated.
We agree with the plaintiffs that the Supreme Court improperly granted the defendant's motion for summary judgment. Issues of fact exist which preclude granting the motion, including (1) the size of the area to be drained and the manner in which it is to be drained under the 1989 easement, and (2) to what extent the flow of water onto the easement, and thereby onto the plaintiffs' property, has been increased. These issues are of a factual nature that cannot be determined on the basis of the pleadings, affidavits, or exhibits submitted. Accordingly, they must be more fully explored at trial before the parties' rights are determined ( see, Fordham Operating Corp. v. County of Westchester, 82 Misc.2d 566, affd 51 A.D.2d 1014).
Ritter, J. P., Thompson, Santucci and Joy, JJ., concur.