Doar v. Kozick

• Citation: 448 N.Y.S.2d 56,87 A.D.2d 603
• Parties: John DOAR, Respondent, v. Paul KOZICK, individually, etc., Appellant.
• Decision Date: 15 March 1982
• Court: New York Supreme Court Appellate Division

Page 56

448 N.Y.S.2d 56

87 A.D.2d 603

John DOAR, Respondent, v. Paul KOZICK, individually, etc., Appellant.

Supreme Court, Appellate Division,

Second Department.

March 15, 1982.

Davis & Trotta, Millerton (Robert D. Trotta, Millerton, of counsel), for appellant.

Norton & Christensen, Goshen (Henry N. Christensen, Jr., and Marie L. McCann, Goshen, of counsel), for respondent.

Before MOLLEN, P. J., and LAZER, O'CONNOR and BRACKEN, JJ.

MEMORANDUM BY THE COURT.

In an action for injunctive relief and damages, the defendant appeals from an order of the Supreme Court, Dutchess County, dated July 23, 1980, which denied his motion to cancel a notice of pendency.

Order reversed, on the law, with $50 costs and disbursements, and motion granted.

Plaintiff is the owner of a parcel of land on which he maintains a summer residence. At the time he purchased the property, and at all times since, a natural brook flowed through his land and passed close to his home. In December, 1972, the defendant acquired certain real estate which was upstream from the plaintiff's property. In 1973, the defendant began to develop his property, intending to sell subdivided lots to individuals for residential purposes. In connection with that development, the defendant began to divert the natural flow of water in the brook in order to create a large artificial lake as part of a recreational area for the residents. Subsequently, the plaintiff, claiming that the diversion of the brook had caused a decrease in the flow of water in the natural watercourse over his land, instituted this action seeking to compel the defendant to alter the lake in such a fashion as to restore the brook to its natural state. Plaintiff also sought damages for his diminished enjoyment of his property on account of the defendant's actions.

Concurrently with the commencement of the action, plaintiff filed a notice of pendency against the defendant's property, and a revised notice of pendency was later filed with the Clerk of Dutchess County. The defendant subsequently moved for an order canceling the revised notice of pendency upon the ground that the complaint failed to state a cause of action or, in the alternative, on the ground that adequate relief could be secured by the posting of an undertaking. Special Term denied the motion. We now reverse.

In Braunston v. Anchorage Woods, 10 N.Y.2d 302, 222 N.Y.S.2d 316, 178 N.E.2d 717, it was alleged that defendants, owners and developers of a subdivision adjoining plaintiffs' real estate, collected and diverted surface water, dumping it on plaintiffs' property to their damage. The plaintiffs sought damages as well as a mandatory injunction to compel the elimination of the conduits through which the surface water was dumped on their land. They also filed a notice of pendency on the theory that the judgment they sought would limit the use which defendants could legally make of their land and that consequently it would affect "the title to, or the possession, use or enjoyment of real property" within the meaning of section 120 of the Civil Practice Act, the predecessor of CPLR 6501.

The Court of Appeals held that the plaintiffs were not entitled to file a notice of pendency. The court wrote (pp. 304-306):

"Plaintiffs are claiming no right, title or interest in the lands of defendants against which the lis pendens was filed; they simply contend that defendants have created a nuisance to the...