NICOLOSI BUILDING INC v. LOEHR (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.

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, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Zuckerman v. City of New York, 49 N.Y.2d 557, 562-564, 427 N.Y.S.2d 595, 404 N.E.2d 718).