MOUNT ZION MINISTRIES CHURCH INC v. HINES COLOR INC (2005)

 Plaintiff commenced this action seeking damages based on, inter alia, the alleged failure of defendant, the owner of property adjacent to plaintiff's property, to install a proper drainage system.   Supreme Court erred in denying defendant's cross motion seeking summary judgment dismissing the amended 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” (Cottrell v. Hermon, 170 A.D.2d 910, 911, 566 N.Y.S.2d 740, lv. denied 78 N.Y.2d 853, 573 N.Y.S.2d 467, 577 N.E.2d 1059).   Here, defendant met its initial burden on the cross motion by establishing that the natural contour of its property, rather than improvements made by defendant thereto, caused the diversion of surface water onto plaintiff's land, and plaintiff failed to raise a triable issue of fact (see id.;   cf. Osgood v. Bucking-Reddy, 202 A.D.2d 920, 609 N.Y.S.2d 690;  see generally Langdon v. Town of Webster, 238 A.D.2d 888, 661 N.Y.S.2d 564, lv. denied 90 N.Y.2d 806, 663 N.Y.S.2d 511, 686 N.E.2d 223).

It is hereby ORDERED that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs, the cross motion is granted and the amended complaint is dismissed.

MEMORANDUM: