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Nicolosi Bldg. Inc. v. Loehr

Appellate Division of the Supreme Court of New York, Second Department
Apr 12, 2004
6 A.D.3d 513 (N.Y. App. Div. 2004)

Opinion

2003-01069.

Decided April 12, 2004.

In an action to recover damages for injury to real property, the defendants appeal from an order of the Supreme Court, Dutchess County (Dillon, J.), dated January 13, 2003, which denied their motion for summary judgment dismissing the complaint.

Murphy Lambiase, Goshen, N.Y. (George A. Smith of counsel), for appellants.

Wolfson, Greller, Egitto, Kitchen Klein, LLP, Poughkeepsie, N.Y. (Lee David Klein of counsel), for respondent.

Before: GOLDSTEIN, J.P., HOWARD MILLER, THOMAS A. ADAMS, BARRY A. COZIER, JJ.


DECISION ORDER

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The defendants made a prima facie showing of entitlement to judgment as a matter of law. In opposition to the motion, the plaintiff failed to raise a triable issue of fact. The plaintiff's observation of a pipe on its property running from the general direction of the defendants' property was insufficient to raise a triable issue of fact as to whether the defendants drained water from their property onto the plaintiff's property by artificial means. Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324-325; Zuckerman v. City of New York, 49 N.Y.2d 557, 562-564).

GOLDSTEIN, J.P., H. MILLER, ADAMS and COZIER, JJ., concur.


Summaries of

Nicolosi Bldg. Inc. v. Loehr

Appellate Division of the Supreme Court of New York, Second Department
Apr 12, 2004
6 A.D.3d 513 (N.Y. App. Div. 2004)
Case details for

Nicolosi Bldg. Inc. v. Loehr

Case Details

Full title:NICOLOSI BUILDING, INC., respondent, v. GARY G. LOEHR, ET AL., appellants

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 12, 2004

Citations

6 A.D.3d 513 (N.Y. App. Div. 2004)
775 N.Y.S.2d 65