Opinion
945 CA 19-01498
11-20-2020
Clark A. BONO and Lois E. Bono, Plaintiffs-Appellants, v. TOWN OF HUMPHREY, Defendant-Respondent.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (PATRICK J. MACKEY OF COUNSEL), FOR PLAINTIFFS-APPELLANTS. RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (JEFFREY F. BAASE OF COUNSEL), FOR DEFENDANT-RESPONDENT.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (PATRICK J. MACKEY OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (JEFFREY F. BAASE OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the cross motion and reinstating the complaint, and as modified the order is affirmed without costs.
Memorandum: Plaintiffs commenced this action for trespass, private nuisance, and de facto taking after defendant replaced a culvert under the road abutting plaintiffs' property, allegedly resulting in increased surface water drainage onto plaintiffs' property. Plaintiffs moved for partial summary judgment on liability, and defendant cross-moved for summary judgment dismissing the complaint. Although Supreme Court properly denied the motion, it erred in granting defendant's cross motion, and we therefore modify the order accordingly.
It is settled law that a property owner, including a municipality, has no right "to collect the surface water from its lands or streets into an artificial channel, and discharge it upon the lands of another" ( Noonan v. City of Albany , 79 N.Y. 470, 476 [1880] ; see Higgins v. Village of Orchard Park , 277 A.D.2d 989, 990, 716 N.Y.S.2d 845 [4th Dept. 2000] ; M.C.D. Carbone, Inc. v. Town of Bedford , 98 A.D.2d 714, 714, 469 N.Y.S.2d 117 [2d Dept. 1983], lv denied 61 N.Y.2d 605, 473 N.Y.S.2d 1027, 462 N.E.2d 157 [1984] ; Musumeci v. State of New York , 43 A.D.2d 288, 291-292, 351 N.Y.S.2d 211 [4th Dept. 1974], lv denied 34 N.Y.2d 517, 358 N.Y.S.2d 1026, 316 N.E.2d 351 [1974] ). Thus, while a municipality may make improvements to its property, it may be held liable if surface water is drained onto the property of another by means of drains, pipes, or ditches (see Buffalo Sewer Auth. v. Town of Cheektowaga , 20 N.Y.2d 47, 51-52, 281 N.Y.S.2d 326, 228 N.E.2d 386 [1967] ; Kossoff v. Rathgeb-Walsh , 3 N.Y.2d 583, 588-590, 170 N.Y.S.2d 789, 148 N.E.2d 132 [1958] ; Kerhonkson Lodge v. State of New York , 4 A.D.2d 575, 578, 168 N.Y.S.2d 56 [3d Dept. 1957] ).
We conclude that neither party is entitled to summary judgment here because there exist triable issues of fact with respect to each cause of action. Initially, there is an issue of fact on the trespass and de facto taking causes of action whether "the natural contour of [defendant's] property, rather than the improvements made by [defendant] thereto, caused the diversion of surface water onto plaintiff[s'] land" ( Mount Zion Ministries Church, Inc. v. Hines Color, Inc. , 19 A.D.3d 1060, 1060, 797 N.Y.S.2d 231 [4th Dept. 2005], lv denied 5 N.Y.3d 711, 806 N.Y.S.2d 161, 840 N.E.2d 130 [2005] ; see Prachel v. Town of Webster , 96 A.D.3d 1365, 1366, 946 N.Y.S.2d 341 [4th Dept. 2012] ; see also Board of Educ., Union Free School Dist. No. 6 of Town of N. Hempstead v. Town of N. Hempstead , 261 App.Div. 1102, 1102, 27 N.Y.S.2d 114 [2d Dept. 1941] ). In addition, on those causes of action, there are issues of fact whether the new culvert caused flooding damage to plaintiffs' property and whether defendant's employees physically trespassed onto plaintiffs' property and removed trees. There are also issues of fact whether defendant had a prescriptive easement for drainage of surface water by means of the culvert and, if so, whether defendant impermissibly expanded the easement by replacing the old culvert, which was 10 inches wide, with the new culvert, which is 15 inches wide (see generally Zutt v. State of New York , 50 A.D.3d 1133, 1133, 856 N.Y.S.2d 245 [2d Dept. 2008] ; Vinciguerra v. State of New York , 262 A.D.2d 743, 745, 693 N.Y.S.2d 634 [3d Dept. 1999] ; Town of Hamburg v. Gervasi , 269 App. Div. 393, 394, 55 N.Y.S.2d 876 [4th Dept. 1945] ). With respect to the private nuisance cause of action, there are triable issues of fact concerning, inter alia, whether the installation of the new culvert caused the damages alleged by plaintiffs and whether defendant acted reasonably in replacing the old culvert with the new culvert (see generally Copart Indus. v. Consolidated Edison Co. of N.Y. , 41 N.Y.2d 564, 570, 394 N.Y.S.2d 169, 362 N.E.2d 968 [1977], rearg denied 42 N.Y.2d 1102, 399 N.Y.S.2d 1028, 369 N.E.2d 1198 [1977] ; Cangemi v. Yeager , 185 A.D.3d 1397, 1399, 128 N.Y.S.3d 708 [4th Dept. 2020] ).