Webster Golf Club, Inc. v. Monroe Cnty. Water Auth.
| Docket Number | 525.1,CA 22-00816 |
| Decision Date | 11 August 2023 |
| Citation | 219 A.D.3d 1136,195 N.Y.S.3d 339 |
| Parties | WEBSTER GOLF CLUB, INC., and B&C Golf, Inc., Plaintiffs-Respondents-Appellants, v. MONROE COUNTY WATER AUTHORITY, Defendant-Appellant-Respondent, O'Brien & Gere Engineers, Inc., LeChase Construction Services, LLC, Fisher Associates, P.E., L.S., L.A., D.P.C., Defendants-Respondents, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (DANIEL R. ROSE OF COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT.
KNAUF SHAW LLP, ROCHESTER (AMY K. KENDALL OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS-APPELLANTS.
HARRIS BEACH PLLC, SYRACUSE (ALLISON B. FIUT OF COUNSEL), FOR DEFENDANT-RESPONDENTO'BRIEN & GERE ENGINEERS, INC.
ADAMS LECLAIR LLP, ROCHESTER (RICHARD T. BELL OF COUNSEL), FOR DEFENDANT-RESPONDENTLECHASE CONSTRUCTION SERVICES, LLC.
SUGARMAN LAW FIRM, LLP, SYRACUSE (STEPHEN A. DAVOLI OF COUNSEL), FOR DEFENDANT-RESPONDENTFISHER ASSOCIATES, P.E., L.S., L.A., D.P.C.
PRESENT: WHALEN, P.J., PERADOTTO, BANNISTER, AND MONTOUR, JJ.
It is hereby ORDERED that the order and judgment so appealed from is unanimously modified on the law by granting those parts of the motion of defendantMonroe County Water Authority seeking summary judgment dismissing the fifth cause of action and seeking summary judgment dismissing the sixth and seventh causes of action insofar as they are based on the diversion of water, and dismissing those causes of action to that extent, and as modified the order and judgment is affirmed without costs.
Memorandum: PlaintiffWebster Golf Club, Inc. operates a golf club on property owned by plaintiffB&C Golf, Inc.(B&C).A stream running through the property feeds ponds on the golf course, which are used to irrigate the golf course.The stream is fed by two tributaries, one of which—the western tributary—originates on nearby property owned by defendantMonroe County Water Authority(MCWA).Around 2010, MCWA began working on a water supply project that included the construction of a water treatment plant and MCWA and B&C entered into an easement permitting MCWA to place a backwash pipe on B&C's property.Pursuant to the easement, MCWA agreed to compensate B&C for damage caused by "installing, maintaining, operating, constructing, or repairing" the pipe.DefendantsO'Brien & Gere Engineers, Inc., LeChase Construction Services, LLC, and Fisher Associates, P.E., L.S., L.A., D.P.C. (collectively, construction defendants) were involved in the design and construction of the MCWA project, which was completed in September 2013.
Plaintiffs commenced this action against MCWA in November 2015 and filed a supplemental summons and amended complaint adding the construction defendants, among others, in August 2017.The amended complaint asserted four causes of action against defendants, for private nuisance, public nuisance, negligence, and trespass, and three causes of action against MCWA only, for a de facto taking, violation of 42 USC § 1983, and breach of contract with respect to the easement.Primarily, plaintiffs alleged that MCWA's water treatment project and the construction defendants’ design and construction thereof diminished the flow of water from MCWA's property to plaintiffs’ stream.Secondarily, plaintiffs alleged that the construction activities caused silt or sediment to be deposited into plaintiffs’ ponds, reducing their capacity.
MCWA moved for summary judgment dismissing the amended complaint against it.The construction defendants each moved for summary judgment dismissing the amended complaint and any cross-claims against them.Plaintiffs cross-moved for summary judgment on the amended complaint.Supreme Court granted MCWA's motion in part by dismissing the first, second, third, and fourth causes of action as time-barred.The court denied MCWA's motion with respect to the fifth, sixth, and seventh causes of action.The court granted the construction defendants’ motions on the ground that plaintiffs’ causes of action against them were time-barred.The court denied plaintiffs’ cross-motion.
Addressing first MCWA's appeal, we agree with MCWA that the court erred in determining that plaintiffs have riparian rights to the surface waters collecting on MCWA's property."The owners of land on a water-course, are not owners of the water which flows in it"( Barkley v. Wilcox , 86 N.Y. 140, 146[1881] ), and "the law has always recognized a wide distinction, between the right of an owner, to deal with surface water falling or collecting on [its] land, and [an owner's] right in the water of a natural water-course"( id. at 147 )."In such [surface] water, before it leaves [the owner's] land and becomes part of a definite water-course, the owner of the land is deemed to have an absolute property, and [the owner] may appropriate it to [its] exclusive use, or get rid of it in any way [it] can, provided only that [the owner] does not cast it by drains, or ditches, upon the land of [its] neighbor; and [the owner] may do this, although by so doing [it] prevents the water reaching a natural water-course, as it formerly did, thereby occasioning injury to ... other proprietors on the stream"( id.;seeKossoff v. Rathgeb-Walsh, Inc. , 3 N.Y.2d 583, 590, 170 N.Y.S.2d 789, 148 N.E.2d 132[1958];Hanley v. State of New York , 193 A.D.3d 1397, 1397-1398, 147 N.Y.S.3d 277[4th Dept.2021], lv denied37 N.Y.3d 915, 2021 WL 5898154[2021] ).
Here, plaintiffs alleged that MCWA prevented water from flowing off of its property, which diminished the flow of water into the western tributary and thus diminished the amount of water entering the stream located on plaintiffs’ property.According to the amended complaint, the water "originate[d] on the property of [MCWA]," and the western tributary was fed by "wetlands on MCWA property, rainwater, groundwater and/or underground springs."Thus, MCWA established, through plaintiffs’ own pleadings, that MCWA's property ( Barkley , 86 N.Y. at 144 ).
In opposition, plaintiffs failed to raise a triable issue of fact inasmuch as their own submissions described the contested water as "groundwater" and "surfacewater" that flowed from "wetlands" on MCWA's property.Similarly, plaintiffs’ causation expert opined that plaintiffs’ stream was diminished due to MCWA's act of "block[ing] off drainage" from its property and "due to changes in the surface and groundwater flow," not by interference with a pre-existing watercourse on MCWA's land.
Thus, MCWA established its entitlement to judgment as a matter of law dismissing plaintiffs’ fifth cause of action, which alleged a de facto taking based solely on plaintiffs’ riparian rights and "MCWA's restriction of water flowing into the Stream."Similarly, to the extent that plaintiffs’ sixth and seventh causes of action are predicated on allegations that MCWA prevented or impeded plaintiffs from exercising their riparian rights, those causes of action must also be dismissed.We therefore modify the order and judgment accordingly.
MCWA further contends that the court erred in denying its motion insofar as it sought summary judgment dismissing plaintiffs’ sixth cause of action, alleging a violation of 42 USC § 1983, as untimely.We reject that contention.To the extent that plaintiffs’ sixth cause of action alleges that MCWA caused silt and sediment to be deposited into plaintiffs’ ponds, which diminished their holding capacity, we conclude that MCWA failed to meet its initial burden on the motion of establishing that the cause of action was untimely inasmuch as there are questions of fact whether the alleged silt and sediment were discharged more than three years before the action was commenced against MCWA (see generallyChavis v. Syracuse Community Health Ctr., Inc. , 96 A.D.3d 1489, 1490, 947 N.Y.S.2d 857[4th Dept.2012];Glacial Aggregates LLC v. Town of Yorkshire , 72 A.D.3d 1644, 1645-1646, 905 N.Y.S.2d 378[4th Dept.2010], appeal dismissed16 N.Y.3d 760, 919 N.Y.S.2d 111, 944 N.E.2d 647[2011];Zayatz v. Collins , 48 A.D.3d 1287, 1290, 851 N.Y.S.2d 797[4th Dept.2008] ).
MCWA further contends that the court erred in denying its motion for summary judgment on the seventh cause of action, for breach of contract.As noted above, the motion must be granted to the extent that it seeks summary judgment dismissing the seventh cause of action insofar as it is based on MCWA's alleged retention or diversion of surface waters.However, the seventh cause of action also alleges that MCWA breached the easement by discharging silt or sediment into the ponds without remediating that condition or compensating B&C for the cost of remediation.Although the easement does not obligate MCWA to remediate any conditions other than those caused by the backwash pipe, the amended complaint relevantly alleges that the construction of the backwash pipe "resulted in ... the release of contaminants, including silt, into the [s]tream."MCWA argues that the allegation is based on pure speculation, but MCWA's submissions on its motion did not demonstrate that the construction of the backwash pipe did not result in the release of contaminants.As the proponent of the motion for summary judgment, MCWA cannot meet its initial burden on the motion only by noting gaps in the non-movants’ proof (seeFreeland v. Erie...
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