Prachel v. Town of Webster

• Decision Date: 08 June 2012
• Citation: 946 N.Y.S.2d 341,96 A.D.3d 1365,2012 N.Y. Slip Op. 04468
• Parties: Kathleen PRACHEL, Plaintiff–Respondent, v. TOWN OF WEBSTER, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 1365
946 N.Y.S.2d 341
2012 N.Y. Slip Op. 04468

Kathleen PRACHEL, Plaintiff–Respondent,
v.
TOWN OF WEBSTER, Defendant–Appellant.

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

June 8, 2012.

[946 N.Y.S.2d 342]

Chamberlain D'Amanda Oppenheimer & Greenfield LLP, Rochester (J. Michael Wood of Counsel), for Defendant–Appellant.

Knauf Shaw LLP, Rochester (Alan J. Knauf of Counsel), and Richard J. Lippes & Associates, Buffalo, for Plaintiff–Respondent.

PRESENT: SMITH, J.P., LINDLEY, SCONIERS, AND MARTOCHE, JJ.

MEMORANDUM:

[96 A.D.3d 1365]Plaintiff commenced this action asserting causes of action for trespass, nuisance and negligence. She sought damages for injuries she sustained and for damage to her property as the result of flooding allegedly caused by defendant's artificial diversion of surface water through its storm and surface water drainage system. Defendant moved for summary judgment dismissing the complaint on the ground that its drainage system was not the cause of the flooding on plaintiff's property. Alternatively, defendant moved for summary judgment dismissing the negligence cause of action and limiting the damages recoverable under the trespass and nuisance causes of action to those accruing within 90 days prior to the service of the [96 A.D.3d 1366]notice of claim ( seeGeneral Municipal Law § 50–e[1][a] ), or one year and 90 days prior to the commencement of the action ( see § 50–i[1] ). Supreme Court denied the motion in its entirety.

To establish liability for damages from the flow of surface water onto her property, plaintiff is required to demonstrate that defendant diverted the surface water by artificial means “or that the improvements [made by defendant] were not made in a good faith effort to enhance the usefulness of the defendant's property” ( Cottrell v. Hermon, 170 A.D.2d 910, 911, 566 N.Y.S.2d 740,lv. denied78 N.Y.2d 853, 573 N.Y.S.2d 467, 577 N.E.2d 1059;see Kossoff v. Rathgeb–Walsh, 3 N.Y.2d 583, 589–590, 170 N.Y.S.2d 789, 148 N.E.2d 132;Smith v. Town of Long Lake, 40 A.D.3d 1381, 1383, 837 N.Y.S.2d 391). Paving alone-as opposed to pipes, sluices, drains or ditches-does not constitute an artificial means of diversion ( see Cottrell, 170 A.D.2d at 911, 566 N.Y.S.2d 740;see also Friedland v. State of New York, 35 A.D.2d 755, 756, 314 N.Y.S.2d 935). Here, it is undisputed that defendant owns a surface water drainage system that collects and diverts water across plaintiff's property. That system includes,...