Opinion
2012-02-14
UNIVERSITY AVENUE ASSOCIATES LLC, Plaintiff–Appellant, v. ANDREWS DEVELOPMENT CORP., Defendant–Respondent.
Goldberg Weprin Finkel Goldstein LLP, New York (Matthew Hearle of counsel), for appellant. Kral Clerkin Redmond Ryan Perry & Van Etten, LLP, Melville (James V. Derenze of counsel), for respondent.
Goldberg Weprin Finkel Goldstein LLP, New York (Matthew Hearle of counsel), for appellant. Kral Clerkin Redmond Ryan Perry & Van Etten, LLP, Melville (James V. Derenze of counsel), for respondent.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered April 27, 2011, which, insofar as appealed from, granted defendant's motion for reargument of its cross motion for summary judgment and, upon reargument, granted the cross motion to the extent of dismissing the allegations that refer to defendant's failure to abate the flow of water, including storm water and effluent, from its property onto plaintiff's property and flooding or damaging it, unanimously affirmed, without costs.
*429 The motion court did not improvidently exercise its discretion in granting reargument and determining that it had overlooked or misapprehended the relevant facts in arriving at its prior decision denying defendant's cross motion for summary judgment in its entirety ( see CPLR 2221[d]; William P. Pahl Equip. Corp. v. Kassis, 182 A.D.2d 22, 27, 588 N.Y.S.2d 8 [1992], lv. dismissed in part and denied in part 80 N.Y.2d 1005, 592 N.Y.S.2d 665, 607 N.E.2d 812 [1992] ). Dismissal of plaintiff's allegations regarding defendant's alleged failure to abate the flow of water was proper since, as plaintiff concedes, the cause of the water run-off from defendant's property to plaintiff's property is not the result of an improvement to defendant's property, but rather is caused by the natural configuration of the land. In opposition to the motion, plaintiff failed to establish that the surface water was diverted by defendants through artificial means ( see Kossoff v. Rathgeb–Walsh, 3 N.Y.2d 583, 589–590, 170 N.Y.S.2d 789, 148 N.E.2d 132 [1958]; Congregation B'nai Jehuda v. Hiyee Realty Corp., 35 A.D.3d 311, 312, 827 N.Y.S.2d 42 [2006] ).