Alfonso Moretti, et al., appellants, v. Croniser Construction Corporation, defendant, Raymond Croniser, respondent.

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

Alfonso Moretti, et al., appellants, v. Croniser Construction Corporation, defendant, Raymond Croniser, respondent.

2009-06297 (Index No. 4966/05)

Decided: September 28, 2010

WILLIAM F. MASTRO, J.P. CHERYL E. CHAMBERS SHERI S. ROMAN SANDRA L. SGROI, JJ. Hiscock & Barclay, LLP, Albany, N.Y. (William A. Hurst of counsel), for appellants. Judith L. Lubinsky, Campbell Hall, N.Y., for respondent.

Argued-September 10, 2010

DECISION & ORDER

In an action, inter alia, to recover for damage to property, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Dutchess County (Sproat, J.), dated May 20, 2009, as granted those branches of the motion of the defendant Raymond Croniser which were for summary judgment dismissing the first, second, and fourth causes of action insofar as asserted against him.

ORDERED that the order is affirmed insofar as appealed from, with costs.

A landowner will not be liable for damages to an abutting property caused by the flow of surface water due to improvements to his or her land, provided that the improvements were made in good faith to fit the property for some rational use, and that the water was not drained onto the other property by artificial means, such as pipes and ditches (see Kossoff v. Rathgeb-Walsh, 3 N.Y.2d 583, 589-590;  Moone v. Walsh, 72 AD3d 764;  Hulse v. Simoes, 71 AD3d 1086;  Tatzel v. Kaplan, 292 A.D.2d 440).   The plaintiff has the burden of establishing that the 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 (see Moone v. Walsh, 72 AD3d 764;  Hulse v. Simoes, 71 AD3d 1086;  Gollomp v. Dubbs, 283 A.D.2d 550).

Here, the defendant Raymond Croniser made a prima facie showing of entitlement to judgment as a matter of law dismissing the first, second, and fourth causes of action insofar as asserted against him (see Hulse v. Simoes, 71 AD3d 1086;  Tatzel v. Kaplan, 292 A.D.2d 440;  Gollomp v. Dubbs, 283 A.D.2d 550).   In opposition, the plaintiffs failed to raise a triable issue of fact as to whether artificial means were used to divert surface water from Croniser's property onto their properties, or as to whether the improvements to Croniser's property were made in good faith (see Hulse v. Simoes, 71 AD3d 1086;  Tatzel v. Kaplan, 292 A.D.2d 440;  Gollomp v. Dubbs, 283 A.D.2d 550).   Accordingly, the Supreme Court properly granted those branches of Croniser's motion which were for summary judgment dismissing the first, second, and fourth causes of action insofar as asserted against him.

MASTRO, J.P., CHAMBERS, ROMAN and SGROI, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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