Lawrence Wolf Inc. v. Kissing Bridge Corp., 01-00636

• Decision Date: 09 November 2001
• Docket Number: 4,01-00636
• Parties: LAWRENCE WOLF, INC., LAWRENCE H. WOLF AND MARY K. WOLF, INDIVIDUALLY,KISSING BRIDGE CORPORATION,CA 01-00636. (Erie Co.) SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

LAWRENCE WOLF, INC., LAWRENCE H. WOLF AND MARY K. WOLF, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,

V

KISSING BRIDGE CORPORATION, DEFENDANT-RESPONDENT

CA 01-00636. (Erie Co.)

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT

November 9, 2001

PRESENT: PIGOTT, JR., P. J., WISNER, SCUDDER, BURNS AND GORSKI, JJ.

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiffs commenced this action alleging that their property, located at the base of two of defendant's ski trails, was damaged by water runoff during a mid-winter thaw. Plaintiffs allege that artificial snow made by defendant was part of the runoff, and that a culvert built by defendant to divert water from plaintiffs' premises became clogged, allowing the water to flow onto plaintiffs' property. Plaintiffs further allege that defendant's artificial pond, located on defendant's property adjacent to plaintiffs' vacation home, has become an actionable nuisance.

Supreme Court erred in granting that part of defendant's motion seeking summary judgment dismissing the cause of action for nuisance. Plaintiffs allege that they are unable to use their vacation home during the summer because defendant has failed to maintain its artificial pond in a proper manner, resulting in foul odors and excessive mosquitos. Plaintiffs allege that the pond has decreased in size, and has become full of sludge and visually offensive. "In order for use of property to constitute a nuisance, it 'must be such as to produce a tangible and appreciable injury to neighboring property, or such as to render its enjoyment especially uncomfortable or inconvenient'" (Copart Indus. v Consolidated Edison Co. of N. Y., 52 A.D.2d 791, 792, affd 41 N.Y.2d 564, rearg denied 42 N.Y.2d 1102, quoting Campbell v Seaman, 63 NY 568, 577). In determining that plaintiffs had not established an interference "substantial in nature, intentional in origin, unreasonable in character", the court engaged in impermissible fact-finding on this motion for summary judgment (see, Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404; Esteve v Abad, 271 App Div 725, 727).

We further conclude, however, that the court properly granted summary judgment dismissing the remainder of the first amended complaint. With respect to the cause of action alleging water damage due to the excess flow of surface waters, defendant met its initial burden of...