| Hulse v Simoes |
| 2010 NY Slip Op 02748 [71 AD3d 1086] |
| March 30, 2010 |
| Appellate Division, Second Department |
| Marion T. Hulse, Appellant, v Jose Simoes,Respondent. |
—[*1] Baxter Smith & Shapiro, P.C., Hicksville, N.Y. (David L. Rosinsky, Louis B. Dingeldey, Jr.,and Arthur J. Smith of counsel), for respondent.
In an action to recover for damage to property, the plaintiff appeals, as limited by her brief,from so much of an order of the Supreme Court, Nassau County (Palmieri, J.), entered January13, 2009, as granted that branch of the defendant's motion which was for summary judgmentdismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
A landowner will not be liable for damages to abutting property caused by the flow ofsurface water due to improvements to his or her land provided that the improvements were madein good faith to fit the property for some rational use, and that the water was not drained onto theother property by artificial means, such as pipes and ditches (see Kossoff vRathgeb-Walsh, 3 NY2d 583, 589-590 [1958]). It is the plaintiff's burden to establish thatthe improvements on the defendant's land caused the surface water to be diverted, that damagesresulted, and either that artificial means were used to effect the diversion or that theimprovements were not made in a good faith effort to enhance the usefulness of the defendant'sproperty.
The defendant made a prima facie showing of entitlement to summary judgment (seeBaker v City of Plattsburgh, 46 AD3d 1075 [2007]; Tatzel v Kaplan, 292 AD2d 440[2002]; Gollomp v Dubbs, 283 AD2d 550 [2001]). In opposition, the plaintiff failed toraise a triable issue of fact as to whether artificial means were used to divert surface water fromthe defendant's property onto her property, or as to whether the improvements to the defendant'sproperty were made in good faith (see Baker v City of Plattsburgh, 46 AD3d 1075[2007]; Tatzel v Kaplan, 292 AD2d 440 [2002]; Gollomp v Dubbs, 283 AD2d550 [2001]). Accordingly, the defendant was entitled to summary judgment dismissing thecomplaint.
The plaintiff's remaining contention is without merit. Mastro, J.P., Skelos, Eng and Roman,JJ., concur. [Prior Case History: 2009 NY Slip Op 30071(U).]