HARRIET BOARDMAN PLAINTIFF APPELLANT v. APPEAL NO

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Supreme Court, Appellate Division, Fourth Department, New York.

HARRIET C. BOARDMAN, PLAINTIFF-APPELLANT, v. CHURCH OF THE TRANSFIGURATION, DEFENDANT-RESPONDENT. (APPEAL NO. 3.)

CA 10-00843

Decided: March 25, 2011

PRESENT:  SCUDDER, P.J., PERADOTTO, LINDLEY, AND GREEN, JJ. MICHAEL A. ROSENHOUSE, ROCHESTER, FOR PLAINTIFF-APPELLANT. CHARLES A. HALL, ROCHESTER, FOR DEFENDANT-RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by denying the motion in part and reinstating the first and second causes of action and as modified the judgment is affirmed without costs.

Memorandum:  Plaintiff commenced this action seeking injunctive relief and monetary damages based upon water damage to her property allegedly caused by the construction and expansion of defendant's building and parking lot.   Supreme Court properly granted that part of defendant's motion seeking summary judgment dismissing the third cause of action, for trespass.   Defendant met its initial burden of establishing that it did not intend to cause water to enter onto plaintiff's property (see Theofilatos v. Koleci, 105 A.D.2d 514), and plaintiff failed to raise a triable issue of fact in opposition (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562).   The court erred, however, in granting those parts of the motion seeking summary judgment dismissing the first and second causes of action, for a permanent injunction and damages based on private nuisance, respectively.   Defendant established its entitlement to judgment as a matter of law dismissing those causes of action (see Langdon v. Town of Webster, 238 A.D.2d 888, lv denied 90 N.Y.2d 806).   Plaintiff, however, raised a triable issue of fact whether the drainage system installed by defendant in connection with the improvements to its property caused the diversion of surface water onto plaintiff's property (cf.id.).   We therefore modify the judgment accordingly.

Patricia L. Morgan

Clerk of the Court