| Baker v City of Plattsburgh |
| 2007 NY Slip Op 09856 [46 AD3d 1075] |
| December 13, 2007 |
| Appellate Division, Third Department |
| Steven J. Baker, Respondent-Appellant, v City of Plattsburgh et al.,Respondents, and Robert M. Sutherland, Inc., Appellant-Respondent, et al., Defendants. (And aThird-Party Action.) |
—[*1] Livingston L. Hatch, Plattsburgh, for respondent-appellant. Dinse, Knapp & McAndrew, P.C., Burlington, Vermont (Shapleigh Smith Jr. of counsel), forrespondents.
Cardona, P.J. Cross appeals from an order of the Supreme Court (Dawson, J.), enteredAugust 4, 2006 in Clinton County, which, among other things, denied a motion by defendantRobert M. Sutherland, Inc. for summary judgment dismissing the cross claims against it.
Plaintiff commenced this action against defendants City of Plattsburgh, Clyde Rabideau andGeorge Miller (hereinafter collectively referred to as defendants), and defendant Robert M. [*2]Sutherland, Inc. (hereinafter Sutherland), among others, allegingthat a utilities renovation and paving project involving a city street, a parking lot, and a parcelowned by defendant New York State Electric & Gas Corporation (hereinafter NYSEG) resultedin increased surface water runoff and other damage to his adjacent property. Seekingindemnification and contribution, defendants then asserted cross claims[FN*]against, among another, Sutherland, which was the engineering firm hired to design the parkinglot renovation project, and third-party claims against a different contractor. Sutherland answeredand moved for summary judgment dismissing the complaint and the cross claims against it.Defendants cross-moved for summary judgment dismissing the complaint against it and opposedthat part of Sutherland's motion seeking dismissal of their cross claims.
Supreme Court granted defendants summary judgment dismissing those causes of actionagainst them alleging property damage due to water runoff. The court also dismissed thecomplaint against Sutherland after plaintiff conceded that he never properly served Sutherland.However, the court denied that part of Sutherland's motion seeking dismissal of the cross claimsagainst it. Sutherland now appeals and plaintiff cross-appeals.
Landowners making improvements to their land are not liable for damage caused by anyresulting flow of surface water onto abutting property as long as the improvements are made in agood faith effort to enhance the usefulness of the property and no artificial means, such as pipesand drains, are used to divert the water thereon (see Kossoff v Rathgeb-Walsh, 3 NY2d583, 589-590 [1958]; Smith v Town ofLong Lake, 40 AD3d 1381, 1383 [2007]; Cottrell v Hermon, 170 AD2d 910,910-911 [1991], lv denied 78 NY2d 853 [1991]; Musumeci v State of New York,43 AD2d 288, 290-291 [1974], lv denied 34 NY2d 517 [1974]). Here, plaintiff claimsthat he experienced increased water runoff onto his property as a result of the renovation projectwhich involved burying utility lines under the street and NYSEG's lot, repaving the street, as wellas regrading and repaving the parking lot. Defendants and Sutherland submitted sufficientevidence to establish that the project was legitimately undertaken in a good faith effort toimprove the utilities, the street and the parking lot, and the record contains no evidence thatpipes, drains or other artificial means were used to divert the water onto plaintiff's property. Asplaintiff did not demonstrate that an issue of fact exists (see CPLR 3212 [b];Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), his claims alleging damagesdue to water runoff were properly dismissed.
Plaintiff's remaining causes of action allege trespass, due process rights violations and zoningordinance violations. However, since neither defendants nor Sutherland specifically addressedthese claims in their motion papers, summary judgment was properly denied (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]; Ames v Paquin, 40 AD3d 1379, 1380 [2007]; Ware v Baxter Health Care Corp., 25AD3d 863, 864 [2006]).
Finally, in their cross claims, defendants alleged that they were entitled to [*3]indemnification and contribution from Sutherland for any damagescaused by defects in Sutherland's design of the project. While Sutherland submitted evidence toestablish that the project was properly designed to prevent water runoff damage to plaintiff'sproperty, it did not demonstrate that the design of the project was unrelated to plaintiff'sremaining claims. Thus, summary judgment dismissing those claims was properly denied (seeAlvarez v Prospect Hosp., 68 NY2d at 324; Ames v Paquin, 40 AD3d at 1380;Ware v Baxter Health Care Corp., 25 AD3d at 864).
Mugglin, Rose and Kane, JJ., concur. Ordered that the order is affirmed, without costs.
Footnote *: Although defendants actuallybrought what they deemed a third-party action against Sutherland, since Sutherland was already anamed defendant in the original action, said claims were, in fact, cross claims and we will referto them as such herein.